STATE OF NEW JERSEY VS. ANTOINE J. MARTIN (14-12-1340, MIDDLESEX COUNTY AND STATWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1224-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTOINE J. MARTIN, a/k/a
BROOKLYN MARTIN,
Defendant-Appellant.1
__________________________
Submitted May 1, 2019 – Decided May 28, 2019
Before Judges Nugent, Reisner, and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 14-12-1340.
Joseph E. Krakora, Public Defender, attorney for appellant
(Magaret McLane, Assistant Deputy Public Defender, of
counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney
for respondent (Nancy A. Hulett, Assistant Prosecutor, of
counsel and on the brief).
1
This appeal was calendared back-to-back with State v. Hoffman, No. A-4341-16.
PER CURIAM
Convicted by a jury of multiple offenses committed during a home invasion
and robbery, and sentenced to an aggregate prison term of twenty-one and one-half
years with seventeen years of parole ineligibility, defendant Antoine J. Martin,
appeals from the Judgment of Conviction. He argues:
POINT I
THE PROSECUTOR'S HIGHLY PREJUDICIAL
COMMENTS IN SUMMATION DENIGRATING THE
DEFENSE REQUIRE REVERSAL OF DEFENDANT'S
CONVICTIONS.
POINT II
INADMISSIBLE TESTIMONY FROM A POLICE
OFFICER THAT HE WAS AFRAID DEFENDANT
WOULD BE VIOLENT DURING AN
INTERROGATION AND THE STATE'S IMPROPER
ARGUMENT IN SUMMATION THAT DEFENDANT
WAS GUILTY OF THE ROBBERY BECAUSE HE
WAS A VIOLENT PERSON REQUIRE REVERSAL OF
DEFENDANT'S CONVICTIONS. (Not Raised Below)
POINT III
DEFENDANT WAS DENIED THE RIGHT TO A FAIR
TRIAL AND DUE PROCESS OF LAW BECAUSE OF
THE ERRONEOUS ADMISSION OF HEARSAY
EVIDENCE. (Not Raised Below)
POINT IV
THE TWENTY-ONE YEAR AGGREGATE
SENTENCE IS MANIFESTLY EXCESSIVE.
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Because the sentencing judge did not explain his reasons for imposing
consecutive sentences or for ordering that defendant serve them in a specific
sequence, we remand for resentencing as to those issues. We otherwise affirm the
Judgment of Conviction.
I.
A.
In December 2014, a Middlesex County grand jury, in eighteen counts of a
twenty-count indictment, charged defendant and co-defendants, Brooke L. Hoffman
and Robert Peterson, with the following crimes: second-degree conspiracy, N.J.S.A.
2C:5-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three);
second-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts four and five); second-
degree burglary, N.J.S.A. 2C:18-2 (count six); third-degree criminal restraint,
N.J.S.A. 2C:13-2 (counts seven and eight); third-degree terroristic threats, N.J.S.A.
2C:12-3(a) (counts nine and ten); fourth-degree possession of prohibited devices,
N.J.S.A. 2C:39-3(h) (count eleven); second-degree unlawful possession of a firearm,
N.J.S.A. 2C:39-5(b) (count twelve); fourth-degree unlawful possession of a knife,
N.J.S.A. 2C:39-5(d) (count thirteen); third-degree possession of a knife for an
unlawful purpose, of N.J.S.A. 2C:39-4(d) (count fourteen); second-degree theft by
extortion, N.J.S.A. 2C:20-5(a) (count fifteen); third-degree theft by unlawful taking,
N.J.S.A. 2C:20-3(a) (count sixteen); fourth-degree criminal mischief, N.J.S.A.
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2C:17-3(b)(8) (count seventeen); and third-degree receiving stolen property,
N.J.S.A. 2C:20-7 (count nineteen). In addition, the grand jury charged defendant
with third-degree hindering his own apprehension by giving false information,
N.J.S.A. 2C:29-3(b)(4) (count twenty), and Peterson with third-degree hindering his
own apprehension by discarding a knife N.J.S.A. 2C:29-3(b)(1) (count eighteen).
Before trial, the court entered an order that dismissed the kidnapping counts,
four and five, and denied defendant's motion to suppress statements he had made to
police. The State tried defendant alone. The jury convicted defendant of first-degree
robbery (counts two and three), second-degree burglary (count six), first-degree theft
by extortion (count fifteen), and the lesser included disorderly persons offenses of
false imprisonment (counts seven and eight); and found him not guilty on the
remaining counts.
A judge who had not presided over the trial sentenced defendant. The judge
imposed the following prison terms: on each first-degree robbery count (two and
three), twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2; on the second-degree burglary count (count six) ten years subject to NERA; on
each of the two false imprisonment counts (counts seven and eight), six months; and
on the fourth-degree hindering apprehension count (count twenty), eighteen months.
The judge ordered the sentences to be served concurrently, except for the eighteen-
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month term for hindering apprehension, which the judge ordered to be served
consecutively and first, followed by the sentences on the remaining counts. In
ordering that the sentence for hindering apprehension be served first, before the
sentences on the remaining counts, the judge cited State v. Ellis, 346 N.J. Super.
583, 597 (App. Div. 2002), but did not explain his reasons.
The judge merged the remaining counts. He also imposed appropriate fees,
penalties, and assessments. Last, he ordered defendant make restitution to the
victims.
B.
The State presented the following evidence at defendant's trial. Late on an
April morning in 2014, one of the victims, Mrs. Lawrence, was in her home fixing
an early lunch for her husband of sixty-three years, when a stranger entered her home
through the back door and walked into the kitchen. Mrs. Lawrence assumed it was
a friend of co-defendant, Brooke Hoffman, who had come to tell her that Brooke no
longer needed a ride to the bank, but the man appeared "alarmed" when he saw Mrs.
Lawrence and turned back out. A few minutes later the man reentered the kitchen
and said, "we're not going to hurt you, we're just here for one thing and one thing
only."
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The man was co-defendant Robert Peterson, who testified at defendant's trial.
After Peterson entered the Lawrence's kitchen a second time, Hoffman and
defendant followed him. They wore scarves over their heads. They went "directly
to the bedroom" and brought Mr. Lawrence into the kitchen. Defendant forcefully
shoved Mr. Lawrence into a chair. Defendant and Hoffman then ransacked the house
looking for money while Peterson, through the use of threats, forced the Lawrences
to remain quiet in the kitchen.
During the home invasion, defendant and Hoffman frequently returned to the
kitchen demanding to know where the Lawrences kept their money. Complaining
the robbery was taking too long, defendant grabbed an antique clock from an
adjoining room and smashed it in an attempt to terrorize the Lawrences into telling
him where they kept their money. After breaking the clock, defendant took a knife
from the kitchen and gestured it at Mr. Lawrence while walking towards him
demanding where he could find the money.
Defendant threatened to burn the house down if they found no money and
Mrs. Lawrence believed him. Eventually, defendant and Hoffman found a gun under
a mattress in a bedroom and brought it to the kitchen. Defendant pointed the gun at
the victims, demanded they disclose the location of money, and told them "things
are gonna get bloody in here."
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Co-defendant Hoffman found stun guns in the home and brought those into
the kitchen. Co-defendant Peterson placed the knife on a kitchen counter while
grabbing a stun gun. Mrs. Lawrence grabbed the knife and attempted to escape.
Peterson chased after her, causing her to lose her balance and fall. Mrs. Lawrence
was unable to get up. Peterson picked her up and carried her back into the kitchen.
He called out to his co-defendants. When they did not answer, he realized they had
fled. Peterson told the Lawrences not to move and then fled out the back door.
Mr. Lawrence went next door to phone 9-1-1 because the intruders had ripped
the phones out of the walls. Mr. Lawrence told the dispatcher that his house had
been ransacked and robbed by two men and one woman and the assailants had a
knife. He also told the dispatcher the assailants stole two guns and a pistol from the
house.
In the meantime, co-defendant Peterson ran to the lot where defendant's car
had been parked and threw the knife underneath a trailer. The car was gone.
Peterson ran to a nearby strip mall and attempted to hide in a hair salon.
Responding police, dispatched by the 9-1-1 operator, began to patrol the area
looking for the suspects. After receiving information that a possible suspect had
entered the hair salon, officers entered the salon and arrested Peterson as he came
out of a restroom saying, "you got me, you got me." He had removed his shirt so
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the police would know he was unarmed. He had hidden a Taser in the bathroom
ceiling. Police eventually recovered his shirt, the Taser, and the knife he had
discarded. Police drove Peterson to the Lawrence's home where Mrs. Lawrence
identified him as one of the perpetrators.
Police officers located the red Cadillac, which was registered to Chevon
Martin, in the parking lot of an apartment complex. Inside the car was a student
identification bearing defendant's name. Peterson, who was in custody at the time,
confirmed to police the defendant, known as "Brooklyn," was his accomplice.
Police surrounded defendant's apartment. Defendant called 9-1-1 and told the
dispatcher that he was in New York but was told to call the police department in the
town where he lived. Police called the number defendant provided and spoke to his
wife. Next, they spoke to defendant. Defendant said he was in New York visiting
family, but police traced his phone to his apartment and told him to come out, which
he did. The police arrested him.
Defendant's wife gave police consent to search the apartment and the Cadillac.
Police found co-defendant Hoffman hiding in the closet and found various items
from the Lawrence home in the house, including the .22 caliber handgun, jewelry,
Mr. Lawrence's Korean War dog tags, military medals, and some foreign currency.
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In a jewelry box, police found a receipt dated June 22, 1977, with Mr. Lawrence's
name on it.
After being driven to the police station, defendant waived his Miranda2 rights
and gave two statements, both of which were recorded and played for the jury with
some redactions. In his statements, defendant maintained he had not known of or
participated in the robbery but had merely agreed to give Peterson and Hoffman a
ride in exchange for fifty dollars for gas. During his first statement, Detective
Clifford accused defendant of lying.
Detective Clifford left the interrogation room at one point but returned after
defendant stood up and would not listen to the another officer's instructions to sit
down. The detective twisted Martin's arm behind his back and took him out of the
interrogation room. Defendant testified that after leaving the interrogation room
officers continued to twist his arm.
Approximately two hours later, defendant gave a second statement. In the
second statement, defendant said he followed Peterson and Hoffman to the back door
of the house. He described what his co-defendants did during the robbery. His
account was consistent with the Lawrence's and Peterson's accounts, but defendant
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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maintained he did not participate. Defendant claimed a fourth person named Malik
drove with the defendants.
Defendant testified at trial. He insisted his second statement was false, and
he had provided details from Peterson, who, from an adjacent cell, had told
defendant what he had told the police. The jury rejected defendant's defense.
II.
Defendant seeks a new trial on three grounds. The first ground involves the
allegedly prejudicial remarks in the prosecutor's summation. Defendant objected to
only one of the three remarks he now complains of. In his second and third points,
defendant complains of statements made by prosecution witnesses during his trial,
none of which he objected to when they were made.
If a defendant raises an issue on appeal that he did not preserve by an objection
or otherwise at trial, we review the action or omission complained of for plain error.
R. 2:10-2. "Plain error is a high bar. . . ." State v. Santamaria, 236 N.J. 390, 404
(2019).
A defendant who does not raise an issue before a trial court
bears the burden of establishing that the trial court's
actions constituted plain error because to rerun a trial when
the error could easily have been cured on request[] would
reward the litigant who suffers an error for tactical
advantage either in the trial or on appeal.
[Id. at 404-05. (alteration in original) (citations omitted).]
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In none of his arguments has defendant demonstrated error, let alone plain
error.
A.
Defendant first contends it was prejudicial error for the prosecutor, in his
summation, to refer to the man named Malik as "mysterious," and to defendant's
assertion that Malik could have been the third intruder as "speculative" and "wildly
speculative." Defendant also complains that the prosecutor characterized his
argument that Malik could have been the third intruder as "really absurd." Last,
defendant takes exception to the prosecutor arguing it was unlikely defendant did
not know Malik's last name, as Malik was married to defendant's sister.
The only objection defendant made to the prosecutor's summation was to his
remarks that the supposition Malik was the third intruder was speculative or highly
speculative. Defendant made the remarks belatedly, not when they were made, but
just before the court was ready to deliver its final instructions to the jury.
We find no merit in defendant's arguments. First, co-defendant Peterson, who
testified at trial, testified that co-defendant Hoffman and defendant, not Malik,
perpetrated the home invasion and robbery. Defendant testified he drove the co-
defendants to the crime scene at their request. He, not the co-defendants, asked
Malik to accompany him. He testified that when the co-defendants left to enter the
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home, he and Malik stayed in the car. He said of Malik: "Malik, he was in the car
and he was in front of the car, but I don't know where he actually went. Like he
didn't stay in my vicinity because I'm looking down at my phone, I just know he
wasn't around me the entirety of the time."
Considering the context of defendant's meek implication that perhaps Malik
was the third perpetrator, we find no error in the prosecutor's characterization of such
testimony as speculative or wildly speculative. Moreover, even if the prosecutor's
statement should not have been made, in view of the co-defendant's testimony,
defendant's statement, and evidence police seized from defendant's car and
apartment, the error was harmless; as were the prosecutor's other remarks about
Malik.
B.
Defendant's arguments in his second and third points are without sufficient
merit to warrant extended discussion. R. 2:11-3(e)(2). His argument about
Detective Clifford's explanation for twisting defendant's arm during the custodial
interrogation is constructed around defendant's unique interpretation, or
misinterpretation, of what Detective Clifford actually said. And defendant's third
point, concerning hearsay statements, hardly demonstrates plain error. For example,
he cites testimony that the police received information about the make and model of
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the car involved in the home invasion and robbery, and asserts such information was
prejudicial hearsay, yet defendant himself testified at trial that he drove the car to
the victims' home.
Even if the testimony defendant now challenges for the first time on appeal
was erroneously admitted, the error was harmless in view of the overwhelming
evidence the State presented against defendant. The testimony cited by defendant
in his second and third points was clearly not capable of producing an unjust result.
R. 2:10-2; State v. McKinney, 233 N.J. 475, 494 (2015).
III.
We turn to defendant's sentence. Defendant's argument that the sentencing
judge failed to adequately consider his military record and post-traumatic stress
disorder as support for finding additional mitigating factors, such as substantial
grounds tending to excuse defendant's conduct, conduct unlikely to recur, or the
character and attitude of defendant indicate he is unlikely to reoffend, have no merit
and warrant no discussion. R. 2:11-3(e)(2). We agree, however, the court gave an
inadequate explanation for imposing consecutive sentences and ordering the
sentence for the fourth-degree hindering defense be served in its entirety before the
remaining, concurrent sentences.
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"When a trial court fails to give proper reasons for imposing consecutive
sentences at a single sentencing proceeding, ordinarily a remand should be required
for resentencing." State v. Carey, 168 N.J. 413, 424 (2001) (citing State v. Miller,
108 N.J. 112, 122 (1987)). In addition, when "imposing a least restrictive or flat
prison term preceding a more restrictive prison term, the court is directed to explain
the consequence of any sequencing and to justify its exercise of discretion to impose
the specific real-time consequence based on the court's finding and weighing of
aggravating factors." State v. Pierce, 220 N.J. 205 (2014) (citing State v. Ellis, 346
N.J. Super. 583, 597 (App. Div. 2002)).
Here, the court did not comply with the requirements of Carey and
Ellis. Citing to cases, without further explanation, does not satisfy their
requirements. Accordingly, we vacate the terms of the Judgment of Conviction
imposing consecutive sentences and remand for resentencing as to the issue of
whether the sentence on the hindering count should be consecutive and served
first. In making its decision, the court shall consider, among other criteria, the
criteria set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985). The court shall
afford the parties ample opportunity to be heard on this issue, as well as whether, as
defendant contends, the second-degree burglary conviction must be merged into the
first-degree robbery conviction. We otherwise affirm the Judgment of Conviction.
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Affirmed in part, vacated in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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