January 8, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NAEEM MILLER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1830.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2006
Before Judges Axelrad and R. B. Coleman.
Defendant, Naeem Miller, was charged under Essex County Indictment No. 03-05-1830 with the first degree murder of Timothy Phillips, contrary to N.J.S.A. 2C:11-3(a)(2) (count one); second degree aggravated assault of Stacy Davis, contrary to N.J.S.A. 2C:12-1b(1) (count two); third degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count three); and second degree possession of a handgun, with a purpose to use it unlawfully against the person of another, contrary to N.J.S.A. 2C:39-4a (count four). After a seven-day trial, conducted in March and April 2005, the jury found defendant guilty of all charges.
On May 13, 2005, Judge Thomas R. Vena sentenced defendant to a term of thirty years in prison, with thirty years of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the murder conviction and a consecutive seven-year term with parole ineligibility for eighty-five percent of that term pursuant to NERA for the conviction for aggravated assault. The court imposed a concurrent four-year term for the conviction on the third count, unlawful possession of the handgun, and merged the fourth count, possession of the handgun for an unlawful purpose, with counts one and two. Defendant now raises the following points of error on appeal:
THE TRIAL COURT'S IDENTIFICATION INSTRUCTIONS, WHICH BOTH MISSTATED THE EVIDENCE AND SUMMARIZED IT IN AN UNBALANCED AND MISLEADING MANNER, DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) (NOT RAISED BELOW).
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON AGGRAVATED AND RECKLESS MANSLAUGHTER AS LESSER-INCLUDED OFFENSES OF MURDER WAS REVERSIBLE ERROR IN LIGHT OF THE CLEAR MANDATE OF THE NEW JERSEY SUPREME COURT IN STATE V. JENKINS, 178 N.J. 347 (2004) (NOT RAISED BELOW).
THE COURT'S CONFUSING AND CONTRADICTORY INSTRUCTIONS, WHICH AT ONE POINT ERRONEOUSLY TOLD THE JURY THAT IT COULD CONVICT THE DEFENDANT OF AGGRAVATED ASSAULT IF IT FOUND THAT HE "PURPOSELY, KNOWINGLY, OR RECKLESSLY . . . ATTEMPT[ED] TO CAUSE SERIOUS BODILY INJURY," REQUIRES REVERSAL OF THE ATTEMPTED MURDER COUNT (NOT RAISED BELOW).
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We have carefully considered defendant's arguments in light of the established facts and applicable law and, we are satisfied there was no plain error and the sentence was not excessive. Therefore, we affirm.
In the early morning hours of December 16, 2001, Kevin Phillips and his brother, Timothy, were at Roland's Bar in Newark. Shortly before closing, Kevin was dancing with a woman when he became involved in an altercation with another male, about Kevin's size, 6'3" tall, 360 pounds, who told Kevin to stop dancing. When Kevin refused to stop dancing with the woman, the two men began to push and punch each other. During the fight, Kevin slipped and fell to the floor and other patrons of the bar eventually pulled the unidentified male off Kevin, who sustained a bloody nose and mouth.
When Timothy saw his brother's condition, he exited the bar and began questioning the crowd outside in an effort to learn who had assaulted his brother. Timothy challenged whoever had fought Kevin to fight him. In the meantime, Kevin was having difficulty breathing because of the bleeding; he went behind a parked car to inspect his injuries in a side view mirror. Kevin testified he was bent down "fixing -- trying to get myself together and I heard the shots coming from across the street, so I stayed where I was, you know, to avoid getting hit." Kevin was only able to see the shooter -- from the waist down. He was "small build, slim[.]" Kevin was unable to identify him.
Around the same time, Stacy Davis exited the bar. He saw Timothy, whom he knew, arguing with a young skinny black man, with dreadlocks, later identified as defendant. As Davis was walking away from the bar, he suddenly fell to the ground. Realizing that he had been shot in the leg, Davis crawled behind a parked car. From that vantage point, peaking around the rear bumper, Davis observed defendant shoot Timothy multiple times with a large black gun while Timothy was on the ground.
Five days after the shootings, while Davis was in the hospital,*fn1 he identified defendant as the shooter from a sequential photographic lineup. The photograph depicted defendant with dreadlocks and without a beard, as Davis recalled defendant's appearance on the night of the shooting. But, in the intervening period between the shooting and the trial, defendant had cut off his dreadlocks and had grown a beard. Davis was unable to identify defendant as the shooter. Though he continued to identify defendant, as depicted in the photograph, as the shooter, Davis said repeatedly, "That can't be him there," referring to defendant in the courtroom.
Also at the bar on the date in question was Felicia Wright. She testified that as she was leaving the bar, she heard six or seven gunshots. After exiting onto the street, she saw Timothy lying on the ground and people were running. Among those running, Wright saw defendant, whom she knew by name. She knew defendant both from the neighborhood and as the cousin of her child's father. According to Wright, during the course of the fifteen or so years that she had known of defendant, he had worn his hair in dreadlocks. She had never before seen him with his hair cut as it was at trial, nor had she seen him before with a beard, as he appeared in court. Wright, who was familiar with guns, saw that defendant was carrying a black automatic gun.
She did not actually see defendant shoot Timothy Phillips, but on January 9, 2002, Wright identified defendant's photograph as the man she saw with the gun.
An arrest warrant for defendant was issued on January 18, 2002, but efforts to locate him were unsuccessful. Approximately two years later, the police in Scranton, Pennsylvania, took defendant into custody. He was returned to New Jersey and eventually tried on the charges lodged in Indictment No. 03-05-1830.
Defendant claims as his first point of error that his right to a fair trial was denied when the court incorrectly stated, while instructing the jury, that Kevin Phillips had identified defendant as the shooter. Defendant also argues that the court summarized the evidence in an imbalanced way, thereby prejudicing his case. Specifically, defendant argues that the core theory of his defense was misidentification and that the court's instruction unduly bolstered the State's case.
Because none of these arguments was raised at trial, defendant must show plain error, "error clearly capable of producing an unjust result," before an appellate court will reverse. R. 2:10-2. As defendant notes, when a judge does comment on the evidence, he or she must be sure to do so in a fair and impartial manner. State v. Robinson, 165 N.J. 32, 45 (2000); State v. Mayberry, 52 N.J. 413, 440 (1968). Notwithstanding any minor imperfections which may have crept into the proceeding, what is essential is that defendant had the fair trial which was his due. Mayberry, supra, 52 N.J. at 440.
In charging the jury in this case, the court stated:
The State has presented the testimony of Felicia Wright, Stacy Davis, and Kevin Phillips. You will recall that these witnesses identified -- identified the defendant as the person who committed the offenses charged. The State also presented testimony that on a prior occasion, before this trial, identified [sic] the defendant as the person -- or some of these witnesses identified the defendant as the person who committed these offenses.
It is clear that the judge misspoke to the extent he included Kevin Phillips among the witnesses who had identified defendant as the shooter. However, it is equally clear that the court's mistake did not have the clear capacity to bring about an unjust result.
Kevin's testimony on that point was unequivocal. He was not able to identify his brother's shooter. Kevin testified, "I was bent down, I was fixing -- trying to get myself together and I heard the shots coming from across the street, so I stayed where I was, you know, to avoid getting hit." His further testimony was as follows:
A: All I observed was a gentleman from the waist down, small build, slim -- slim silhouette, you know, the jeans or whatever, from the waist down, and he slid on top of my brother and shot some more times.
Q: Did you ever get a look at that individual's face?
Q: Can you tell me today who that individual was if you saw him again?
The jurors also heard both counsel discuss in their respective summations that Kevin did not identify defendant as his brother's shooter. Defense counsel said:
[Kevin] wasn't in a great position to see or identify anyone. And in fact, I think he told you straight out and straight up, he didn't know who did it. If he knew who shot his brother I think he would have told you. He didn't know.
The prosecutor said of Kevin:
He's clearing the blood. He starts to hear shots. He cannot see who the shooter is. However, he says that that wasn't that guy inside the bar with him because the silhouette, the figure, was a slim individual. He only could see him from the waist down or above the waist down. He couldn't see his face, unfortunately. But, he said it wasn't the guy or looked like the guy that was in the bar because we know he's almost as big as Mr. Phillips himself.
The jurors also heard a read-back, during their deliberations, of Kevin's testimony. In context, therefore, we are convinced the fleeting mention of Kevin as one of the witnesses who identified defendant as the shooter did not have the capacity to mislead the jurors or to cause them to reach a result they otherwise would not have reached.
Defendant next argues that the court erred by refusing to include an instruction on aggravated and reckless manslaughter as lesser-included offenses of murder. "In order to justify a lesser-included offense instruction, a rational basis must exist in the evidence for the jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense." State v. Savage, 172 N.J. 374, 396 (2002). See also State v. Brent, 137 N.J. 107, 113-14 (1994). Absent a request for inclusion of a lesser-included charge, the court is not obligated to give such an instruction sua sponte unless the facts "clearly indicate" that there is a rational basis to find defendant guilty of the lesser-included offense while acquitting on the greater offense. State v. Jenkins, 178 N.J. 347, 361 (2004).
In this matter, defendant did not request the lesser-included charge. Therefore, the record must clearly indicate that a lesser charge was appropriate. It was not. This was not a case where the victim's death arose from chaotic or reckless shooting into a crowd of people. Rather, the evidence disclosed that multiple shots were aimed at a single target. The victim was shot eight times at close range while he was lying on the ground. If the testimony of the State's witnesses was accepted by the jurors, there is little doubt that the shooter's conduct was knowing and purposeful. While the jurors could have found defendant was not the shooter, there was no clear indication of a rational basis for the jurors to acquit defendant of the murder charge but still convict him of the proposed lesser offenses of aggravated or reckless manslaughter. See State v. Harris, 141 N.J. 525, 550-51 (1995) (finding no rational basis for charging aggravated manslaughter when defendant fired a single shot into victim's back and neck at close range while victim was lying on the ground); State v. Biegenwald, 126 N.J. 1, 18 (1991) (finding four shots to the head at close range to be murder); State v. Hammond, 338 N.J. Super. 330, 339 (App. Div.), certif. denied, 169 N.J. 609 (2001) (holding that the jury could only find intentional murder where the victim was shot at close range in the shoulder, neck, back, leg and chest). Consequently, there was no plain error.
Defendant also alleges, for the first time on appeal, that the court's instruction on the aggravated assault count was confusing and contradictory because it included language from the indictment that referenced an improper standard of law. In instructing the jury on the aggravated assault count, the court read the pertinent part of the indictment that alleged that defendant did "purposely, knowingly, or recklessly, [sic] under circumstances manifesting extreme indifference to value of human life cause or attempt to cause serious bodily injury to Stacy Davis by shooting him." Defendant acknowledges, however, that the court then properly instructed the jury on the elements of aggravated assault.
It is the entire effect of the charge that must be examined and not just an offending portion. State v. Wilbely, 63 N.J. 420, 422 (1973). In this instance, the court gave the correct standard of law immediately following the reading of the indictment. The charge, taken as a whole, properly explained the intent necessary to convict defendant on the charge of aggravated assault. Necessarily, we find no error clearly capable of producing an unjust result.
Finally, defendant argues that imposition of consecutive sentences on the murder and aggravated assault charges yielded an excessive sentence. Defendant contends that the court did not sufficiently weigh the factors of State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014 (1986), and that the court allegedly failed to take into consideration that this was one act of violence that occurred at the same time in the same place. We disagree.
Based on our review of the record, we are satisfied that the judge considered the Yarbough factors and found that there were two separate victims with separate outcomes. Under such circumstances, the imposition of consecutive sentences was permissible. See State v. Molina, 168 N.J. 436, 443 (2001) (stating that the multiple-victim factor under Yarbough is to be afforded great weight and should ordinarily result in at least two consecutive sentences). Defendant's actions, though close in time, resulted in the death of Timothy Phillips and the serious bodily injury of Stacy Davis. The court acted well within its discretion in imposing consecutive sentences.