July 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IAN LEMONS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 05, 2007
Before Judges Kestin, Weissbard, and Payne.
Defendant, Ian Lemons, appeals from his conviction after a jury trial in June 2005, on all ten counts of an indictment charging the following offenses: first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); first-degree attempted murder, N.J.S.A. 2C:11-3a(1)(2) and N.J.S.A. 2C:5-1 (count five); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count six); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count seven); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count eight); and two counts of second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (counts nine and ten).
On August 5, 2005, after denying defendant's motion for a new trial, the court imposed the following sentence: count one, eighteen years with an eighty-five percent parole disqualifier and five years of parole supervision upon release; count two merged into count one; count three merged into count one; count four, five years with two and one-half years of parole ineligibility, concurrent to count one; count five, twenty years with an eighty-five percent parole disqualifier, five years of parole supervision upon release, to be served consecutive to count one; count six merged into count five; count seven merged into count five; count eight merged into count seven; count nine, eight years with five years of parole ineligibility, consecutive to counts one and ten; count ten, eight years with five years of parole ineligibility, consecutive to counts five and nine.
On August 14, 2004, nineteen-year-old Calvin Gunn was walking home from his job as a bellman at the Taj Mahal Casino in Atlantic City. On his way home, around 7:30 in the morning, Gunn stopped at the Cedar Market to purchase cigarettes for himself and his mother. At that time, Gunn was carrying his tip money, in addition to a paycheck from the Taj Mahal.
Inside the Cedar Market, Gunn observed a black male in his early twenties wearing a black and white NBA hat, with his hair in cornrows, waiting at the counter. Gunn stated that the person's height was approximately five-nine or five-ten and that the person had a scruffy beard. After waiting approximately two minutes, during which time Gunn was so close that he could have reached out and touched the person, Gunn asked the man if he was done at the cash register. The man allowed him to go ahead of him and Gunn proceeded to purchase his cigarettes and leave.
As Gunn was walking home, he noticed the man from the Cedar Market standing in the doorway of a building. As Gunn walked past the doorway, the individual stepped out and placed a silver semi-automatic weapon to Gunn's back and told him to walk around the corner to an alleyway. Gunn was able to see the gun prior to it being placed against his back. When they reached the alley, the individual reached into Gunn's back pockets and removed his wallet, cash, and the cigarettes while Gunn surrendered his paycheck.
After taking these items, the perpetrator walked to a silver Hyundai Elantra, sat there for a moment, then drove off. Gunn contacted the police, but by the time they arrived the man was gone. The officers who responded drove Gunn around in search of the robber. Gunn told the police that if given the opportunity he would be able to identify the person who had robbed him.
Three days later, on August 17, 2004, Gunn was walking to his girlfriend's house when he noticed a group of men sitting on a porch. One of the men broke away from the group and started walking quickly towards Gunn and reached under his shirt as if for a gun. Gunn recognized this person as the man who had robbed him three days prior and began to run. He ran around the corner to the apartment building of his friend, Anthony. As Gunn entered the building he slammed the door behind him, catching the perpetrator's arm in the door. Gunn then opened the door, and slammed it again to close the door, and ran up to the third floor where Anthony lived.
Gunn waited with his friend until he believed that it would be safe to leave. He did not contact the police at this point because he believed the individual would have already fled, and because the police had not done anything the first time he called, and because he did not want to be branded as a "snitch." After waiting awhile, Gunn proceeded to his girlfriend's home without incident and remained there for some time.
While at his girlfriend's home, Gunn got a call from his friend, Richard Trotter, to return to Anthony's home to play a newly released X-box game. Trotter picked Gunn up at the girlfriend's house, and as the two of them walked to Anthony's place, Gunn began to tell Trotter what had happened earlier. The two stopped to speak to a group of friends around the same place where Gunn had initially seen the robber earlier in the day. As the two continued to Anthony's place, Gunn stopped to tie his shoe. When he stood up, he realized that the man who had chased him earlier and who had robbed him three days before was "right there in [his] face." Gunn saw a gun pointed at him and attempted to push it out of his face. As he did so, the assailant fired the gun causing a bullet to lodge in Gunn's wrist. Gunn testified that he only heard two shots, and that he believed that only his hand and arm had been hit. The gunman then fled on foot.
Trotter called an ambulance and Gunn was transported to a nearby hospital for treatment. Gunn had also sustained at least two shots to his abdomen and had to undergo surgery. He testified that he did not recall speaking to officers at the scene, but the officers who responded testified that Gunn described his attacker as a light-skinned black male in his twenties with cornrows, wearing an orange shirt and blue jeans.
Two days after the incident, police obtained a taped statement from Gunn. Approximately one week after the incident, and following Gunn's discharge from the hospital, officers visited Gunn at his home. The officers showed Gunn three different photo arrays after telling him that the perpetrator might not be in the lineup. After examining them, Gunn identified a picture of the defendant as the person who had robbed him and shot him on August 14 and 17, respectively. Gunn based his identification not on defendant's hairstyle, but on defendant's facial features. He also identified defendant during the trial as the person who robbed and shot him.
Trotter was uncooperative with the investigation. He refused to give a taped statement or to fill out any forms when asked by the police. He told the police that he ran to the side of the building when the shooting started and remained there until it concluded. As a result, the shooter had his back to Trotter and he did not see his face. Trotter was also unable to give any specific description of the shooter.
Defendant was arrested on November 23, 2004, at the Atlantic City Medical Center, under the name Jamal Anderson. Defendant testified that he was using that name because of an outstanding warrant for failure to appear in court on an eluding charge.
At trial, defendant testified that at the time of the shooting he did not wear his hair in cornrows, but rather in box braids, which are different from cornrows. He also testified that, other than while in county lockup, he had never worn orange clothing in his life. Initially, defendant presented an alibi statement that he was at a baby shower on the day of the shooting. It was later determined that the baby shower occurred on a separate date and defendant testified that he could not recall where he was on the day of the shooting.
On appeal, defendant, through counsel, presents the following arguments:
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT DENIED THE DEFENSE REQUEST FOR A WADE HEARING.
THE DEFENDANT WAS DENIED THE FUNDAMENTAL RIGHT TO CROSS-EXAMINE THE VICTIM/WITNESS, AND DEFENDANT'S MOTION FOR MISTRIAL, AFTER THE COURT REVERSED ITS ORIGINAL RULING AND PRECLUDED DEFENDANT FROM CROSS-EXAMINING THE VICTIM WITH PHOTOGRAPHS OF OTHER PERSONS WHO LOOKED LIKE THE DEFENDANT, SHOULD HAVE BEEN GRANTED.
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE ONLY EVIDENCE WAS IDENTIFICATION OF THE DEFENDANT, COUNSEL FAILED TO TIMELY MOVE FOR A WADE HEARING, COUNSEL FAILED TO ADEQUATELY ATTACK AND PRESENT EVIDENCE TO CONTRADICT OR QUESTION THE EYEWITNESS IDENTIFICATION, AND COUNSEL ADMITTED THAT HE HAD INSUFFICIENT TIME TO PREPARE FOR TRIAL.
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR CONSIDERATION OF AGGRAVATING SENTENCING FACTOR 1 DUE TO INADEQUATE JURY INSTRUCTIONS (Not Raised Below).
THE CONSECUTIVE N.E.R.A. SENTENCES AMOUNTING TO IMPRISONMENT FOR FIFTY-FOUR YEARS WITH PAROLE INELIGIBILITY OF FORTY-TWO YEARS, THREE MONTHS AND NINETEEN DAYS WERE EXCESSIVE.
In a supplemental pro se brief, defendant argues:
THE POLICE CANNOT ISSUE AN ARREST-WARRANT BY SIGNING THE JURAT ON THE COMPLAINT.
Defendant argues that the court committed reversible error in denying his request for a hearing pursuant to Wade.*fn1
Defendant urges that such a hearing was necessary because this case rested solely on Gunn's identification of him. However, even though the issue was known, defense counsel did not seek a Wade hearing until just prior to jury selection. As defendant points out, the judge was not pleased to have the issue raised at such a late date, but, nevertheless, still entertained the motion before ultimately denying it.
"A pretrial identification procedure can be a critical moment in the course of a criminal prosecution." State v. Michaels, 136 N.J. 299, 318 (1994) (citing Wade, supra, 388 U.S. at 230, 87 S.Ct. at 1932, 18 L.Ed. 2d at 1158). Pretrial identification is "'peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.'" Ibid. (quoting Wade, supra, 388 U.S. at 230, 87 S.Ct. at 1932, 18 L.Ed. 2d at 1158).
Similarly, the effects of an initially suggestive identification, like those of a coercive or suggestive interrogation, are likely to remain corrosive over time; that is, "once the witness has picked out the accused . . . he is not likely to go back on his word later." [Wade, supra,] 388 U.S. at 229, 87 S.Ct. at 1933, 18 L.Ed. 2d at 1159. Further, the effects of suggestive pre-trial identification procedures, as with suggestive or coercive interview practices, are exceedingly difficult to overcome at trial. Ibid. Witnesses in both situations are quite likely to be absolutely convinced of the accuracy of their recollection. Thus their credibility, understood as their obvious truth-telling demeanor, is unlikely to betray any inaccuracies or falsehoods in their statements. [Id. at 319.]
It is "equally well recognized that in criminal actions an eyewitness's identification may be the most crucial evidence." State v. Madison, 109 N.J. 223, 232 (1988).
In an effort to balance these dangers with the benefits of such testimony, we have said that a Wade hearing should be granted where a defendant presents "some evidence of impermissible suggestiveness" in the identification process. State v. Cherry, 289 N.J. Super. 503, 517 (App. Div. 1995) (quoting State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994)); see also, State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985) (stating that there must first be a proffer of some evidence of impermissible suggestiveness before a defendant is entitled to a Wade hearing).
The first issue to be addressed in deciding whether identification testimony should be admissible is whether the procedure utilized by the police was "in fact impermissibly suggestive." Madison, supra, 109 N.J. at 232. "'Impermissive suggestibility is to be determined by the totality of the circumstances of the identification.'" Id. at 234 (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973)). It is a question of whether "the identification was not actually that of the eyewitness, but was imposed upon him so that substantial likelihood of irreparable misidentification can be said to exist." Ibid. (quoting Farrow, supra, 61 N.J. at 451).
If the court finds suggestiveness, the second step is to determine if the faulty procedure resulted in a "very substantial likelihood of irreparable misidentification." Id. at 239. "The essence of the second inquiry is reliability, that is, 'whether the identification was prompted by the eyewitness's own recollection of the crime or by the suggestive manner in which the identification procedure was conducted.'" Cherry, supra, 289 N.J. Super. at 518 (quoting State v. Santoro, 229 N.J. Super. 501, 504 (App. Div. 1988)). Reliability is determined from "the totality of the circumstances in the particular case." Madison, supra, 109 N.J. at 239. Certain factors that should be given particularized attention include:
1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness's degree of attention; 3) the accuracy of the witness's prior description of the criminal; 4) the level of certainty demonstrated at the time of the confrontation; and 5) the time between the crime and the confrontation. [Cherry, supra, 289 N.J. Super. at 519-20.] Following jury selection, the court heard arguments as to whether a Wade hearing was warranted under the circumstances. At that point, trial defense counsel raised the following facts that allegedly resulted in impermissible suggestiveness: an officer involved in the investigation received an anonymous tip that defendant was the perpetrator, resulting in his picture being included in the lineup; the fact that the prosecutor himself identified another picture as defendant based on the similarity to defendant; and because none of the other photographs featured men with their hair in "cornrows," as defined by defense counsel. After viewing the photographs for himself, the judge described the array as follows:
THE COURT: All right. Let the record reflect I'm looking at one, two, three, four, five, six photographs. And the six photographs in my view appear to be African-American males, all look about the same age, all have, I don't know, I don't want to say the wrong thing either. I don't know the difference between cornrows and braided hair, but it all is long, longer-type braided hair. And I'll tell you what, a couple of these -- a couple of these people look a lot alike, a couple of them look a lot alike. And I'm satisfied that the argument made by counsel about the difference between braided hair and cornrows is nothing that's going to distinguish these pictures. Because other than the fact that some people had shorter hair than others, the cornrow, what I call cornrow or braided hair appears on all of them. And these people all look around the same age and I see the picture of the defendant.
After further argument concerning whether the defendant had cornrows, the judge found: "They're all rather similar." In denying the motion, the judge ruled as follows:
So six weeks ago and the first time I'm hearing about anything is today. But that's okay. I could technically say you're out of time, but I'll say that, plus I'll say that I do not believe there has been an adequate proffer of some evidence of impermissible suggestiveness in the photo array used for these purposes.
The argument that you make, that there may have been some description of cornrows as compared to braids would obviously go to the strength or credibility of the identification and not to the issue of admissibility, in my view under Cherry, 289 N.J. Super. 503.
The question about a pretrial Wade hearing is where in the Court's discretion, it finds that there has been a proffer of evidence of impermissible suggestiveness in a photo array. That's not been shown here. If anything, as I've indicated, those six people all look around the same age, same type of hair and, uncannily, at least two or three of them could be probably pass in my view for brothers. So, in my view, they are not -- the array in and of itself is not in an impermissibly suggestive manner where one would stick out like a sore thumb.
The issue that you talk about on the cornrow versus braided hair and what you have would go to the strength or credibility of the identification or the description that was given, which then goes to the strength or credibility of the actual identification that was, in fact, made; not to one of impermissibly suggestive.
So besides the fact that it's out of time, I do not think the threshold has been proven by a preponderance of the evidence to show that it's been impermissibly suggestive under the totality of the circumstances; that any impermissibly suggestive procedures were used and resulted in a likelihood of irreparable misidentification. The issues that you talk about go to weight and not to admissibility of the array. So in my view, there would be no need for a Wade hearing.
Having reviewed defendant's arguments on appeal, we discern no basis on which to overturn Judge Donio's careful analysis, which was supported by substantial, credible evidence in the record. State v. Watson, 261 N.J. Super. 169, 176 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993).
The victim testified that he identified defendant by his facial features rather than his hairstyle. His initial observations were made under well-lit conditions for about two minutes, and he then viewed defendant twice more. These facts strongly suggest that his identification stemmed from his confrontations with the perpetrator and not from any pre-trial identification procedure.
We conclude that defendant failed to present sufficient evidence to require a Wade hearing.
Defendant argues that he should have been allowed to present a photograph to the victim on the stand in order to show that the victim could have made a mistake when picking out defendant's photograph. Defendant further contends that this constituted a violation of his Sixth Amendment right to confront the witnesses against him. We disagree.
At trial, defendant wished to show the victim a photograph of one Melvin Wells, who allegedly looked very similar to defendant, in order to have the victim state that Wells also could have been the person who attacked him. Prior to trial, there was a discussion between counsel and the court about the admissibility of this photo. The court directed both sides to brief the issue.
The discussion then resumed on the first day of trial, June 27, 2005. Initially, the State did not raise any objection to the use of the photo on cross-examination. During this discussion, defense counsel stated that he did not intend to introduce the picture as a suggestion of third-party guilt, but merely to question the reliability of Gunn's identification.
Defense counsel also wished to show a more recent photo of defendant to compare with that of Melvin Wells. However, there was an issue as to the propriety of using the photo since it showed defendant in his orange prison garb. There followed a discussion of how to resolve the problem and the court directed defense counsel to obtain, on the record, consent from defendant to be shown in his orange prison uniform. At this point in the discussion, the court stated, in regards to the photo, "you [the attorneys] decide what you want to do."
Following the first discussion regarding the photo, both sides gave their opening statements. During the course of his opening statement, defense counsel stated:
[W]hen I come back before you after all the evidence has been presented to you, I, of course, will go first. That's what we call summation. At that time, you will have heard all the testimony. You'll have heard the cross-examination of the witnesses.
You'll see those photographic arrays. I'll show you some other photographs again, which may, again, be shown to the victim, Mr. Gunn, in an effort to determine -- to determine whether, in fact, the identification was accurate, whether, in fact, it was well intended, was misplaced.
This will be all the evidence to hear.
In addition to opening arguments, there was also witness testimony presented by the State. Following the lunch recess, the issue of the photographs was raised again. During this colloquy, the assistant prosecutor stated his belief that the court had made a ruling regarding the photograph. The court disagreed with this conclusion and began to address the admission of the photo in regard to third-party guilt.
Even though defense counsel had stated numerous times that he did not intend to introduce the photo for purposes of third-party guilt, the court nonetheless saw the request as presenting just such an issue, because, no matter how the question regarding the photo was phrased, there would be an inference that the person in the photo may have been the one who actually committed the robbery. Therefore, because defendant was unable to show any nexus between the individual in the photo and the actual robbery, the court ruled the photo inadmissible.
At this point, defense counsel pointed out that he had already told the jury in his opening statement that he was going to be showing the victim a photograph to determine whether his identification of defendant was accurate. The judge offered to give a curative instruction, but counsel declined the offer and, instead, moved for a mistrial. The court denied the motion.
"Generally, a motion for a mistrial should be granted only in those situations which would otherwise result in manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969). That is not the situation here.
Defendant does not provide any case law that would support admission of the photograph, only arguing that he should have been granted some leeway in cross-examining the victim. As noted by the court in its discussion of the issue, there are no New Jersey cases directly on point. However, a Connecticut case does address the issue.
In State v. Ketchum, 696 A.2d 987, 989 (Conn. App.), certif. denied, 697 A.2d 368 (1997), a defendant sought to introduce a photograph to show that a third party look-alike might have committed the crime. There, the court found that "[a] defendant may introduce evidence that indicates that a third party, and not the defendant, committed the crime with which defendant is charged," provided that defendant can "show some evidence that directly connects a third party to the crime with which the defendant is charged." Ibid. (citations omitted). In that case, there was nothing tying the person in the photograph to the crime, so the photo was ruled inadmissible. Id. at 990. That conclusion is in line with our law on the issue of third-party guilt generally.
"Courts must provide criminal defendants with a 'meaningful opportunity to present a complete defense.'" State v. Cotto, 182 N.J. 316, 332 (2005) (quoting State v. Garron, 177 N.J. 147, 168 (2003)). Included therein is the right to present evidence of third-party guilt, "if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." State v. Fortin, (Fortin II), 178 N.J. 540, 591 (2004); see also, State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S.Ct. 873, 4 L.Ed. 2d 873 (1960); State v. Koedatich, 112 N.J. 225, 301-02 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989).
The defendant need not provide evidence that substantially proves the guilt of another, only evidence that could give rise to reasonable doubt. Fortin II, supra, 178 N.J. at 591; State v. Fulston, 325 N.J. Super. 184, 191 (App. Div. 1999) (citing Koedatich, supra, 112 N.J. at 299), certif. denied, 163 N.J. 397 (2000). "[A] defendant's proofs must be capable of demonstrating 'some link between the third-party and the victim or the crime.'" Cotto, supra, 182 N.J. at 333 (quoting Koedatich, supra, 112 N.J. at 301). A court has wide discretion in deciding whether or not to admit evidence of third-party guilt. Fortin II, supra, 178 N.J. at 591.
Here, although defense counsel maintained that he was not seeking to admit the Wells photo for purposes of third-party guilt, the third-party guilt standard provided the correct framework within which to assess the admissibility of the photo. As the trial judge found, it is inescapable that defense counsel's production of a photo of another man could easily lead the jury to think that defendant had some evidence that the person in the photo might have committed the crime.
Defense counsel obtained the photograph of Wells by "asking around the neighborhood" if anyone looked like defendant. When he found out that Wells looked similar in appearance to defendant, he obtained a mug shot of Wells from the local Sheriff's Office. Defendant had nothing to tie Wells to the crime in question, aside from the fact that he lived in the area and looked like defendant. Without evidence connecting Wells to the crime, the judge's decision to exclude the photograph did not constitute a misapplication of discretion. Nor did the exclusion so impair defendant's ability to cross-examine the victim as to constitute an infringement on defendant's right of confrontation. The exclusion of the photograph was not grounds for a mistrial.
Defendant also claims that a mistrial should have been granted because he told the jury that he would be presenting the photograph to them, and, as a result of the judge's ruling, was not able to do so.
However, defense counsel did not make specific mention of the photograph in dispute. Rather, he stated, "I'll show you some other photographs again, which may, again, be shown to the victim, Mr. Gunn, in an effort to determine -- to determine whether, in fact, the identification was accurate, whether, in fact, it was well intended, was misplaced." Thus, any reference to the photograph was vague and did not constitute a promise that such a photo would be shown. Defense counsel clearly hedged his bet, by saying that the photograph "may" be shown. The judge offered to provide a curative instruction but counsel declined. We fail to discern any prejudice to defendant from his counsel's opening. Clearly, a mistrial was not warranted on this basis.
Finally, defendant claims that he was denied the effective assistance of counsel as a result of his trial attorney's several errors, including: (1) failure to timely request a Wade hearing; (2) failure to issue a subpoena for Trotter who, it is claimed, could have been helpful on the identification issue because he failed to identify defendant from the same photo array shown to the victim; and (3) counsel's failure, based on his own admissions, to properly investigate and prepare for trial.
We have already rejected defendant's Wade claim. The judge did not rely solely on defendant's failure to make a timely request for a hearing but ruled that a hearing was not warranted, a decision that we have affirmed.
Defendant's other two ineffectiveness issues are better suited for post-conviction review. State v. Preciose, 129 N.J. 451, 460 (1992).
Turning to defendant's sentencing arguments, defendant attacks the court's submission of aggravating factor (1) for consideration by the jury. Defendant claims that the submission of the instruction to the jury was inappropriate because the language of the instruction was confusing and because the court gave no guidance on the various elements of the aggravating factor.
The court's submission of the aggravating factor to the jury occurred after the decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed. 2d 851 (2004), and before State v. Natale, 184 N.J. 458 (2005). The actual sentencing occurred on August 5, 2005, three days after the decision in Natale was handed down. Following that decision, Judge Donio correctly noted that it was not necessary for juries to make specific findings regarding aggravating factors. Most importantly, the judge went on to find "credible evidence in the record to render applicable to this case aggravating factor 1 for sentencing purposes."
Consequently, in light of this finding by the judge, defendant's argument regarding the instruction to the jury is moot. Defendant asks for a fair consideration of aggravating factor one, yet he has already received one. Furthermore, there is ample credible evidence in the record to support the judge's application of this aggravating factor. Defendant robbed Gunn at gunpoint and then, upon coming across him a few days later, chased him in a likely attempt to kill him as the sole witness to his earlier crime. Following his first failed attempted to kill Gunn, defendant sought him out a second time that day, this time shooting Gunn approximately five to seven times and leaving him for dead. There was no error in this regard.
In the last argument in his main brief, defendant contends that his sentence was excessive. We disagree.
Defendant's argument is twofold. First, defendant attacks the imposition of consecutive sentences for the two counts of possession of a weapon by a convicted person. Second, defendant attacks, more generally, the imposition of the consecutive parole ineligibility terms as excessive. We first discuss the imposition of the consecutive sentences.
Defendant argues that counts nine and ten should have been made to run concurrently. In support of this proposition, defendant alleges that because the court allegedly gave no guidance as to why it imposed consecutive sentences, it must be assumed it was because the indictment alleged that the weapon possession occurred on two separate dates. Defendant asserts that this would mean that a felon could be sentenced consecutively for each day that he possessed a prohibited weapon, including, in this case, the two days between the dates alleged in the indictment. Defendant argues that this could constitute four sentences for a single act of possession.
In his seventeen-page "Reasons for Sentence," Judge Donio carefully stated the following in regard to imposing consecutive terms on counts nine and ten:
Consecutive sentences are imposed on these counts as a result of the Court's determination that the moment defendant possessed the weapon having been previously convicted, his crime was complete. While he may have acquired it with a plan to use it for crime related purposes, there is no evidence what so ever that he acquired the weapon with the specific intent to rob Lamar Gunn and three days later shoot him between 5 and 7 times. Considering the facts of this case, it would have been impossible to predict such events unfolding as they did. Lamar Gunn was simply in the wrong place at the wrong time when he met defendant in Cedar Market on August 14, 2004. Had he decided not to purchase cigarettes for his mother, the subsequent events likely would never have occurred.
Defendant shot Lamar Gunn because he identified him as the robber, had that circumstance not existed, Lamar Gunn likely would have never suffered such a cruel and heinous attack on August 17, 2004. Therefore, the offenses perpetrated against Lamar Gunn and the offenses of possession or acquiring the weapons while a convict are separate crimes with distinct purposes. To be sure, under [N.J.S.A. 2C:39-7], possession of a weapon by a convict does not require possession with a purpose, rather the possession in and of itself is the crime. The crimes involved separate acts and were completed at different times in different places. In addition, the only way to deter this type of activity is to impose a consecutive sentence. If consecutive sentences are not imposed for possessing a weapon as a convict on one who is also convicted of crimes such as Aggravated Assault, Robbery and Attempted Murder, then an offender is not deterred from using the weapon once he possesses it.
See Generally, State v. Bryant, 237 N.J.
Super. 102 (App. Div. 1988), [rev'd on dissent,] 117 N.J. 495 (1989). For the foregoing reasons, the Court has determined that Counts 9 and 10 should run consecutively.
The State counters defendant's multiple sentence hypothetical by arguing it would rarely arise. Additionally, if such a situation did occur, where an indictment charged a defendant with possession for each day he had a weapon but did not use it, the court could use its discretion to ameliorate any potential inequity by imposing concurrent sentences. In any event, that is not the case here.
When dealing with whether or not to impose concurrent versus consecutive sentences, a court must conduct the analysis articulated in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). The so-called Yarbough factors are as follows:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.*fn2
[Id. at 643-44.]
Defendant utilized the gun on August 14 when he robbed the victim and again used a gun when he attempted to eliminate Gunn as a witness on August 17. Defendant was not charged with each day he possessed the gun. He was only charged for those days when he actually used the gun in the course of committing a criminal act.
Judge Donio clearly stated that he was imposing consecutive sentences because defendant was convicted of possessing the weapon on the two dates in question. It is unknown what other dates defendant actually possessed the weapon, or even if the same weapon was used on both occasions. Further, imposing concurrent sentences on these counts would essentially give defendant a free pass on one of the possession charges, even though he used a weapon in two separate and distinct criminal episodes. Therefore, the imposition of consecutive sentences was justified under Yarbough.
The second portion of defendant's argument deals generally with the excessiveness of his sentence. Defendant again raises the issue that his sentence of twenty years for attempted murder was excessive because the court incorrectly found aggravating factor one. In the previous section we have concluded that aggravating factor one was correctly applied. Additionally, defendant seems to ignore that the court also found aggravating factors three, six, and nine - the so called recidivism factors.
In his Statement of Reasons, the judge fully set out his reasoning for the sentence imposed. The judge weighed the evidence and found that aggravating factors one, three, six and nine applied, and that mitigating factor eleven marginally applied. These determinations are fully supported by the record and defendant's extensive criminal history.
The court also, relying on State v. Marinez, 370 N.J. Super. 49 (App. Div.), certif. denied, 182 N.J. 142 (2004), took into consideration the real time consequences of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as it applied to this case. Weighing those consequences in light of the aggravating and the mitigating factors, the judge imposed sentences beyond the midpoint range.
Finally, in imposing consecutive sentences, the court applied the Yarbough factors, stating:
First, as briefly mentioned above, the crimes occurring on August 14, 2004 and delineated in Counts 1 through 4 and 9 of the indictment encompass offenses wholly independent from those occurring on August 17, 2004, which are delineated in Counts 5 through 8 and 10 of the indictment. Defendant's objective on the earlier date was to deprive the victim of personal property for his own pecuniary gain. The objective on the latter date was to cause the death of the victim because he knew the victim could identify him. Second, the crimes on each date involve separate and distinct acts of violence, albeit both ill-suited to a civilized society. On August 14, 2004, defendant pointed a handgun and threatened immediate use thereof in an effort to force the victim to relinquish anything of value and place him in fear for his physical safety if he did not comply with defendant's demands. However, on August 17, 2004, defendant's act of violence was that of essentially hunting down the victim as he walked to a friend's house to play video games and injecting multiple bullets into him. Third, the facts of this case clearly indicate that the acts of defendant on each of the aforementioned dates are distinct in characteristic as well as separate and distinct in time and place. They occurred three days apart and at completely different locations within Atlantic City. Fourth, the convictions for which sentences are to be imposed in this case are numerous; defendant was found guilty of ten offenses all of which are physically violent or prefatory to his acts of violence. Additionally, while the crimes in this case were not perpetrated upon multiple victims, on qualitative balance, this factor is of no weight. The Court recognized that "there can be no free crimes in a system for which the punishment shall fit the crime" State v. Yarbough, 100 N.J. 627, 643 (1985), and "separate crimes deserve separate punishment." State v. Sutton, 132 N.J. 471, 485 (1993). Where the victim of two or more crimes is the same but the crimes are separate, consecutive sentences may be imposed. State v. Mejia, 141 N.J. 475, 504 (1995); State v. Rivera, 232 N.J. Super. 165, 181 (App. Div.) certif. denied, 117 N.J. 169 (1989). The interests of justice compel the Court to conclude that this defendant should not be entitled to a free crime by virtue of the fact that the same individual was victimized. On each occasion, the defendant committed separate and distinct acts for which the victim suffered separate and distinct physical and psychological harm. Therefore, the Court finds that the interests of justice require imposition of consecutive sentences for the Robbery and Attempted Murder convictions, Counts 1 and 5 respectively. The remaining conviction that does not require merger, Count 4, Unlawful Possession of a Weapon, third degree will run concurrently to the respective predicate offense of Robbery of August 14, 2004. This is set to run concurrently as the Court deems this conviction as sharing the same "unity of specific purpose" and somewhat interdependent on one another. State v. Swint, 328 N.J. Super. 236, 264 (App. Div. 2000).
We see no basis on which to overturn defendant's sentence.
We reject defendant's pro se argument as without sufficient merit to warrant discussion. R. 2:11-3(e)(2).