March 14, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LARRY FLEMING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0286.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2007
Before Judges Wefing and Yannotti.
Defendant Larry Fleming was charged under a Mercer County indictment with murder, N.J.S.A. 2C:11-3a (count one); felony murder, N.J.S.A. 2C:11-3a (count two); and aggravated arson, N.J.S.A. 2C:17-1a(1) (count three). Defendant was tried to a jury, which found him guilty on all counts. At sentencing, the judge merged count two with count one, and imposed a life term of imprisonment. The judge also sentenced defendant to a consecutive ten-year term, with a parole ineligibility period as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his convictions and the sentences imposed. For the reasons that follow, we affirm.
We briefly summarize the relevant facts, drawn from the evidence presented at trial. On the evening of May 11, 2002, sometime after 10:15 p.m., firefighters responded to a blaze in an abandoned house at 340 Brunswick Avenue, in Trenton, New Jersey. Ellis McNeill (McNeill) was found dead in the second-floor hallway. Dr. Daksha Shah (Shah), the deputy medical examiner for Mercer County, performed the autopsy on McNeill. Shah testified that McNeill was alive during the fire, and he inhaled smoke and gases, which resulted in death from carbon monoxide poisoning.
Detective Lloyd Mathis (Mathis) from the Mercer County Prosecutor's Office investigated the cause and origin of the fire. Mathis testified that he observed substantial fire damage on the first floor of the house, and heat and smoke damage on the second floor. When Mathis moved debris on the first floor, he detected the odor of gasoline. Mathis determined that someone had taken gasoline, poured it on the floor by the front door, as well as in other places on the first floor, and then ignited the gasoline.
Edwin Warren (Warren) was McNeill's friend. He testified that on the day of the fire, he went to the house at 340 Brunswick Avenue with Carmen Jones (Jones). Jones stayed there at times in a room in the rear of the second floor. McNeill also stayed with a woman called Bernadine in a room on the second floor of the house. Warren said that earlier that day, he had purchased beer, wine and some "rock cocaine." Warren and Jones went to Jones' room and "got high."
Warren testified that, late in the afternoon, defendant walked into Jones' room and asked whether Warren wanted to buy drugs. Warren had purchased drugs from defendant in the past. Warren told defendant that he did not have any money. Later, Warren went into the hallway and saw Jones running in his direction. She told him that the house was on fire. Warren saw a "big ball of black smoke and fire."
Jones testified that McNeill was a "good friend." She said that on May 11, 2002, she was in the house with Warren. During the day, Jones left the house about ten times to purchase cocaine. Jones said that drug dealers would come into the house and make sales. Around 8:00 p.m., Jones saw McNeill talking in his room with Bernadine. Jones left the house and went down to the bar and to a store. Jones saw defendant, who told her that she was a "cross-artist," apparently because she had not spent any money with defendant or come to see him.
Jones returned to the house. Jones and Warren were in her room when defendant appeared. Defendant told Warren that he was a "cross-artist" and Warren had "crossed" him. Jones said that she did not purchase any drugs from defendant at this time. According to Jones, defendant did not have any drugs for sale at that time. Defendant left the room and said that if "anyone needed him, they knew where to find him."
Later, Jones went down the stairs and saw defendant with Curtis Hawkins (Hawkins) and Joseph McKinney (McKinney). Jones said that there was a light in defendant's hand "but it wasn't [a] flashlight." Jones also saw a red can with a yellow nozzle in defendant's left hand. Jones testified that she thought defendant was going to put some gasoline in his car.
McKinney went upstairs to a room on the second floor and Jones returned to her room. Jones said that she and Warren were getting "high" when she heard stones being tossed at the window. She heard someone calling "fire, fire." Jones walked out of the room and started down the steps but she was "hit in the face with the smoke" and she "felt the heat." Jones retreated to her room and told Warren that the house was on fire. Jones, McKinney and Warren jumped from a window on the second floor.
Hawkins testified that he knew defendant. Hawkins used to "watch [defendant's] back" while defendant sold drugs. On May 11, 2002, Hawkins was with defendant near a bar close to the abandoned house. Hawkins and defendant had been selling drugs. According to Hawkins, on the day of the fire, he also helped a person named P.J. sell drugs in or around 340 Brunswick Avenue. Defendant was not aware that Hawkins assisted P.J. in the sale of the drugs. Hawkins and defendant watched P.J., and defendant wondered why he was "running in and out of" the house.
Hawkins entered the house with defendant. They went upstairs and entered Jones' room on the second floor. Defendant asked Warren about $50 that defendant claimed was owed to him. Warren told defendant he did not owe him any money, and defendant replied that if another $50 was "spent out of here," Warren would "suffer the consequences." Defendant and Hawkins exited the house and Hawkins returned to the bar.
Hawkins later left the bar and spoke with P.J. who was several houses away from 340 Brunswick Avenue. Hawkins saw defendant "down on the corner." Defendant came towards him. Defendant had a gasoline can in his hand, and he told Hawkins that a "[l]ady across the street wants some gas." Defendant gave defendant two or three dollars to purchase gasoline. Hawkins took the can and purchased gasoline. Hawkins returned and met defendant in an alleyway near 340 Brunswick Avenue. Hawkins gave defendant the can with the gasoline and, in return, defendant gave Hawkins some cocaine.
Defendant went into the alleyway towards the rear of the house. Hawkins said that the next thing he saw was defendant "coming running, and flames is [sic] behind him." Hawkins was outside when the police arrived on the scene. Detective Timothy Thomas (Thomas) of the Trenton Police Department said that Hawkins was slumped over and he was shaking his head. According to Thomas, Hawkins did not smell of fire or gasoline and there were no burns or singe marks on his hands. Hawkins told Thomas that defendant "did this shit."
Defendant did not testify and called no witnesses on his behalf.
Defendant's attorney raises the following points on defendant's behalf:
I. THE INSTRUCTION SOLELY PERTAINING TO THE USE OF DEFENDANT'S INVOLVEMENT IN DRUG SALES IN "ASSESS[ING] THE IDENTIFICATION OF AND/OR THE RELATIONSHIP BETWEEN THE WITNESSES AND THE DEFENDANT" WAS ERRONEOUS, REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTIONS (Not raised below).
II. THE JUDGE REPEATEDLY MISINFORMED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCENCE" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT (Not raised below).
III. SINCE THE COURT EXPRESSED PERSONAL HOSTILITY AGAINST THE DEFENDANT THAT WENT BEYOND ASSESSMENT OF AGGRAVATING AND MITIGATING FACTORS, DEFENDANT AT THE VERY LEAST SHOULD BE RE-SENTENCED BEFORE A DIFFERENT TRIAL COURT AND THE ARSON SENTENCE SHOULD BE IMPOSED CONCURRENTLY (Not raised below).
Defendant also has filed a supplemental pro se brief in which he raises the following contentions:
I. THE ASSISTANT PROSECUTOR FAILED TO DISCLOSE BRADY MATERIAL FAVORABLE TO THE DEFENSE, AFTER A SPECIFIC REQUEST, VIOLATING DEFENDANT'S RIGHT TO DUE PROCESS OF LAW (Not raised below).
II. THE ASSISTANT PROSECUTOR ELICITED WHAT WAS KNOWN TO BE PERJURED TESTIMONY FROM THE STATE'S WITNESSES, FAILED TO CORRRECT THOSE STATEMENTS, AND RELIED UPON THE PERJURED TESTIMONY DURING SUMMATION (Not raised below).
We have carefully considered the record in light of these arguments and are convinced that they are entirely without merit.
Defendant first argues that the judge's instruction regarding evidence of defendant's drug sales was erroneous. The judge instructed the jury as follows:
I'm going to give you a cautionary and limiting instruction. You've heard testimony in this case that the defendant, Larry Fleming, has been involved in narcotics sales. Our rules of evidence in the State of New Jersey limit the application of those acts and preclude you from considering that evidence in your deliberations as proof that the defendant committed the acts alleged in the indictment.
In other words, you can't say, Fleming is a drug dealer, therefore, he committed the crimes in the indictment. Prior acts can't be attached to show that Mr. Fleming had a predisposition to commit a crime and he was a criminal, and therefore, he committed the present offenses. You can -- I should say, evidence that a defendant has committed prior crimes or other wrongs or acts cannot be used by you as proof of conduct in conformance with the charges listed in the indictment to show further proof that he had in fact committed the offenses in the indictment.
However, you may use the testimony to gauge and assess the identification of and/or the relationship between the witnesses and the defendant. In other words, there was a history of some prior involvement. You can use that to determine whether Fleming was known to them and under what circumstances he was known to them, but you just can't say he committed a crime and, therefore, he committed the crime now. I think you can understand that.
Defendant argues that the judge "wrongly informed" the jury that it could use the evidence for purposes of identification. Defendant additionally contends that the instruction improperly "singled" him out by failing to mention that the jury also could consider the illegal activities of the State's witnesses. We disagree.
N.J.R.E. 404(b) governs the introduction of certain evidence of a person's past crimes, wrongs, or acts. The rule states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Evidence may be introduced pursuant to N.J.R.E. 404(b) if it satisfies the test established in State v. Cofield, 127 N.J. 328, 338 (1992). See also State v. Marrero, 148 N.J. 469, 483 (1997). When the so-called "other crimes" evidence is admitted pursuant to N.J.R.E. 404(b), the judge must instruct the jury on the limited use of the evidence. Cofield, supra, 127 N.J. at 340-41.
However, the rule governing the admission of "other crimes" evidence does not apply to evidence that is part of the res gestae of the charged offense. State v. Long, 173 N.J. 138, 157 (2002). See also State v. Muhammad, 359 N.J. Super. 361, 390-91 (App. Div.), certif. denied, 178 N.J. 36 (2003) (noting that evidence directly relating to the charged crime is not "other crimes" evidence under N.J.R.E. 404(b)). Res gestae evidence "establishes the context of the criminal event and assists in presenting the full picture of the crime to the jury." Long, supra, 173 N.J. at 157-58.
Here, the State presented evidence which established that:
1) defendant was angered by the fact that P.J. was selling drugs in the abandoned house; 2) defendant had tried unsuccessfully to sell drugs in the house to Jones and Warren; 3) defendant went to the house and accused Warren of being a "cross-artist" who had "crossed" him; 4) defendant claimed that Warren owed him money; and 5) defendant told Warran that there would be "consequences" if additional money was spent "out of here." This was res gestae evidence that established the "context" in which the crimes were committed. Ibid.
Although a limiting instruction was not required to guide the jurors in their consideration of this evidence, the judge nevertheless instructed the jury that the evidence of defendant's involvement in the sale of drugs could not be considered proof that he committed the charged offenses. The judge also told the jury that it could consider the evidence "to gauge and assess the identification of and/or the relationship between the witnesses and the defendant." There was no objection at trial to the instruction and, therefore, we consider this contention under the plain error standard in R. 2:10-2. We are satisfied that the instruction was not erroneous, let alone plain error that would require reversal of the conviction.
It was proper for the jury to weigh the evidence of defendant's involvement in illicit drug sales when considering his relationships with the State's witnesses, and the role those relationships may have played in the charged offenses. Furthermore, the identification of the person who set the fire at 340 Brunswick Avenue was a key issue in the case. Defendant endeavored to raise reasonable doubt by suggesting that Hawkins started the fire. In our view, the judge's instructions to the jury concerning the evidence of defendant's drug sales were not erroneous.
Defendant also contends that the judge erred by failing to instruct the jurors that they could consider the evidence of involvement of certain State witnesses in illegal drug sales. There was no request for any such instruction at trial. The judge's omission of an instruction on this point was not erroneous. The judge's instruction on the credibility of the witnesses provided sufficient guidance to the jurors for their deliberations.
Defendant next argues that the judge erred by stating that the jurors' role was to determine defendant's "guilt or innocence." We have said that use of the term "guilt or innocence" may tend to reduce the State's burden of proof and should be avoided. State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003). However, in White, we found the use of the phrase throughout the jury charge did not warrant reversal of the defendant's conviction. Ibid. Here, the judge made three passing references during the trial to defendant's "guilt or innocence." As in White, the judge's remarks were harmless error.
We also reject defendant's contention that his sentences are excessive and the judge erred by imposing a consecutive sentence for arson. The judge found aggravating factors under N.J.S.A. 2C:44-1a(1) (nature and circumstances of the offense); N.J.S.A. 2C:44-1a(2) (gravity and seriousness of harm inflicted on the victim); N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and seriousness of the offenses of which he has been convicted); N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law); and N.J.S.A. 2C:44-1a(11) (penalty short of imprisonment would be perceived as a cost of doing business). The judge found no mitigating factors.
Although State v. Dalziel, 182 N.J. 494, 502-03 (2005), which was decided after defendant was sentenced, indicates that a finding under N.J.S.A. 2C:44-1a(11) should not have been made in this case, the judge's other findings regarding the aggravating and mitigating factors are amply supported by the record. Defendant argues that the judge made certain statements at sentencing which showed personal hostility towards him. The judge's references to defendant as a "parasite" were ill-advised. However, we are not convinced that the judge's remarks require re-sentencing here, particularly since the judge's sentencing determination is otherwise sound.
We also see no merit in defendant's contention that a consecutive sentence should not have been imposed in this matter. In our view, the judge's decision to impose a consecutive sentence for arson represents an appropriate weighing of the factors enumerated in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).*fn1
We are satisfied that defendant's sentences are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984).
We have considered defendant's other contentions and we are convinced that they are not of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).