July 23, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRYL JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, 03-02-0188.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 3, 2007
Before Judges Axelrad and Winkelstein.
Defendant Darryl Johnson was convicted by a jury of two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts one and two); second-degree burglary, N.J.S.A. 2C:18-2b(2) (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five). Counts four (unlawful possession of a weapon) and six (terroristic threats) were dismissed. Following trial, defendant pled guilty to second-degree being a person prohibited from possessing a weapon, N.J.S.A. 2C:39-7b (count seven). The court imposed a seven-year term on the burglary conviction (count three) subject to an 85% NERA period of parole ineligibility. Concurrent terms were imposed on the other convictions as follows: eighteen months with an eighteen-month parole disqualifier on each of counts one and two, seven years on count five, and seven years with a five-year parole disqualifier on count seven. Appropriate fees and penalties were also assessed.*fn1
Defendant asserts the following arguments on appeal:
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE HANDWRITTEN STATEMENTS OF LASHONDA FURBY AND PATRICK BROWN, AND THE UNRECORDED TELEPHONE STATEMENTS OF NATASHA JACKSON, WERE SUFFICIENTLY RELIABLE TO BE ADMITTED INTO EVIDENCE AS PRIOR INCONSISTENT STATEMENTS PURSUANT TO N.J.S.A. 803(A)(1).
(A) THE STATE FAILED TO PROVE THAT THE HANDWRITTEN STATEMENTS OF LASHONDA FURBY AND PATRICK BROWN WERE SUFFICIENTLY RELIABLE TO BE ADMITTED INTO EVIDENCE AS SUBSTANTIVE EVIDENCE.
(B) THE TRIAL COURT FAILED TO RECOGN[I]ZE AND INSTRUCT THE JURY THAT NATASHA JACKSON'S PRIOR INCONSISTENT STATEMENTS WERE OFFERED SOLELY TO "NEUTRALIZE" HER TRIAL TESTIMONY.
THE ABSENCE FROM THE TRIAL COURT'S CHARGE OF ANY REFERENCE TO THE PRINCIPLES OF STATE V. KOCIOLEK CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
IMPOSITION OF THE AGGREGATE 7 YEAR BASE CUSTODIAL SENTENCE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE
We are not persuaded by defendant's arguments and affirm his conviction and sentence, with the exception of a remand for resentencing on counts one and two as required by State v. Natale, 184 N.J. 458 (2005).
These convictions arose out of an incident occurring on May 11, 2002, during which defendant forced his way into the home of his former girlfriend, Lashonda Furby, and mother of his child, looking for her current boyfriend, Patrick Brown, and pointed a handgun at her and another occupant, Natasha Johnson. Fortunately, no one was injured. According to the testimony of Morris Township police officer David Powell, he arrived at the scene in response to a telephone call from Furby and took oral statements from Furby, Brown, and Johnson. He observed that the bottom storm door window was broken and there was glass on the outside of the porch, and described the demeanor of the three people at the house as "agitated, emotional, [and] obviously shaken up by something."
The officer testified that all three witnesses told essentially the same story about what had occurred inside the residence, noting they were all familiar with defendant and recognized him. He recounted that after several phone calls, defendant showed up at Furby's residence with a handgun and forced himself past her into the house, knocking her backwards into the storm window and causing it to break. Defendant ascended the stairs looking for Brown, pointing a gun at Furby and then at Jackson, who was on the second floor, while Furby tried to stop him from continuing up the stairs. Brown struck defendant on the head with a liquor bottle as he came up the landing on the third floor, they wrestled, and defendant stumbled backwards down some stairs, dropping the gun. Furby picked up the gun and hid it under a mattress on the third floor. Defendant then retrieved the gun and fled the residence. Within a few hours of their oral statements, Furby and Brown provided handwritten statements at police headquarters in which they expressly identified defendant as the person they saw in the house with a handgun.
At trial the three witnesses changed their testimony. Furby informed the court, outside of the jury's presence, that she did not wish to testify and, when informed by the court that she had an obligation under subpoena to testify truthfully at trial, Furby responded that she would "testify that I don't remember." Furby then testified that on the specific day "a black man" came into her house but she was "not sure" if it was defendant. She admitted, however, that when she wrote her statement she "believed" and was "pretty sure" it was defendant. Furby authenticated her handwritten statement and it was admitted, over defendant's objection, as substantive evidence as a prior inconsistent statement.
Similarly, Brown testified it was "hard" to remember exactly what occurred, although he remembered throwing a bottle down the stairs and wrestling with "someone," and that, based on what the other witnesses said, he was under the impression it was defendant. Brown acknowledged he had met defendant prior to that date and would recognize him if he saw him. Brown authenticated his handwritten statement and it was also admitted, over defendant's objection, as substantive evidence as a prior inconsistent statement.
Jackson testified she only remembered an argument between Furby and an unknown person on May 11, but denied observing any physical altercation between defendant and Furby or Brown, defendant pointing a firearm at her, or even that defendant was at the house that day.
Sergeant Denise Arsenault of the Morris County Prosecutor's Office testified that she interviewed Jackson in an unrecorded telephone conversation on July 30, 2002, less than three months after the incident, during which she took notes. Over defendant's objection on hearsay grounds, overruled by the court, Sgt. Arsenault testified that in the telephonic statement, Jackson identified defendant as the intruder with the gun. This oral statement was admitted solely for purposes of Jackson's credibility and the jury was so instructed that the statement could not be considered for purposes of substantive evidence "to prove the truth of what was she may have said to the detective."
Defendant's motion for a judgment of acquittal at the end of the State's case was denied.*fn2 Defense counsel did not request a Kociolek*fn3 charge on the potential unreliability of unrecorded oral statements by the defendant. Nor did defense counsel object to the jury charge. Defendant was convicted and this appeal ensued.
Although it would have been preferable for the trial court to have conducted a preliminary Gross*fn4 hearing to assess the reliability of Furby and Brown's handwritten statements, failure to do so was harmless error as the statements were sufficiently reliable and were properly admitted as prior inconsistent statements under N.J.R.E. 803(a)(1). It is undisputed the out-of-court statements contained observations that would have been admissible had Furby and Brown testified to them at trial and were inconsistent with the declarants' trial testimony. N.J.R.E. 803(a)(1). Moreover, both witnesses gave handwritten statements to the police and authenticated the statements and their handwriting. Ibid.
We have identified the following illustrative factors to consider in assessing the reliability of prior inconsistent statements:
(1) the declarant's connection to and interest in the matter reported in the outof-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion or a summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducements or coercion for the making of the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement and (15) the presence or absence of corroborating evidence. [State v. Gross, 216 N.J. Super. 98, 109-110 (App. Div. 1987), aff'd, 121 N.J. 1 (1990).]
In admitting the declarants' handwritten statements into evidence as reliable, the trial court noted they were written within "a very close period of time [-] within hours or less of the incident." These statements were made at headquarters in the presence of police. As the declarants themselves were not the subject of any investigation, there was no motivation for them to lie, shift blame to anyone else, or pressure or inducement to identify defendant. Cf. State v. Lakomy, 126 N.J. Super. 430, 434-435 (App. Div. 1974) (citizen informants are presumptively reliable). There was no indication they were under the influence of alcohol or drugs. Moreover, the version of the events provided by both witnesses was consistent and inherently believable. Furby and Brown knew defendant before this incident and had contact with the intruder for a sufficient time and under circumstances that they should have been able to identify him. Cf. State v. Morales, ll6 N.J. Super. 538, 545 (App. Div. l971), (an identification by a person who knew the actor before the crime carries a certain reliability), certif. denied, 60 N.J. 140 (1972). In fact, in their oral statements made at the scene and in close proximity to the event, as well as in their written statements made shortly thereafter, the declarants consistently and unambiguously identified defendant as the intruder. Another significant indication of reliability was that neither declarant repudiated the written statements as false.
When the State offered Jackson's telephonic statement to the investigating officer, defendant objected only on hearsay grounds. Defendant now argues that prior inconsistent statement should not have been admitted without a finding that Jackson's testimony surprised the prosecutor, N.J.R.E. 607, and without a contemporaneous instruction explaining that the prior inconsistent statement was offered solely to "neutralize" or "eradicate" her prior testimony. See State v. Gallicchio, 44 N.J. 540, 545 (1965). Defendant neither objected on this ground nor requested such contemporaneous instruction. Therefore, we will reverse on this ground only if the appellant shows plain error, i.e., error "clearly capable of producing an unjust result." R. 2:10-2. Although there is merit to defendant's argument that the unrecorded telephonic statement should not have been admitted into evidence, even though limited to credibility, we are not satisfied that its admission and the lack of contemporaneous instruction on neutralization constituted an error of sufficient magnitude "to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Jackson's statement was cumulative of the statements of Furby and Brown as to identifying defendant as the armed intruder. To some extent, her statement might be viewed as sympathetic to defendant and minimizing the seriousness of his conduct, as she stated "she knew he wasn't going to harm her because they knew each other" when he pointed the gun at her, and she believed the next time she saw him, "he'[d] apologize to her about what he did." Jackson even expressed that she "didn't want any criminal charges lodged against him involving this matter." Moreover, defendant was not prejudiced by the absence of a contemporaneous instruction as this was a one-day trial. The trial court gave an adequate instruction to the jury, which was not objected to by defense counsel. If a jury charge is not flawed, but simply could be better, a reversal is not warranted. State v. La France, 117 N.J. 583, 594 (1990). The instruction given by the court did indicate that Jackson's telephonic statement could only be considered as to credibility and not as substantive evidence. See State v. Manley, 54 N.J. 259, 270 (1969) (noting that, in administering the criminal law, the courts must rely on jurors' ability and willingness to follow limiting instructions).
Defendant acknowledges that the court's failure to give a Kociolek charge sua sponte is not necessarily reversible error, let alone plain error, but constitutes plain error when considered cumulatively with the error set forth in Point I. This argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Nor is there any merit to defendant's challenge to the court's denial of his motion for judgment of acquittal. Affording the State the benefit of all favorable evidence and inferences that may reasonably be drawn from that evidence, we are satisfied a reasonable fact-finder could find guilt beyond a reasonable doubt based on the combination of the handwritten statements and the testimony of Furby and Brown, as well as the observations of Officer Powell. See State v. Reyes, 50 N.J. 454, 458-59 (1967); see also State v. Moffa, 42 N.J. 258, 263 (1964) (a reviewing court applies the same standard). The evidence showed: (1) that defendant was the intruder who entered Furby's house by breaking a front window with the purpose of harming Brown, her current boyfriend; (2) that defendant possessed a handgun for the purpose of harming Brown; and (3) that defendant pointed the handgun at Furby and Jackson.
We turn now to defendant's sentence. The court found three aggravating factors, the risk that defendant will commit another crime, N.J.S.A. 2C:44-1(a)(3); defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9); and no mitigating factors. The court imposed the then-presumptive seven-year custodial term on the second-degree offenses, N.J.S.A. 2C:44-1f(1)(c), and maximum eighteen-month terms on each of the fourth-degree offenses, N.J.S.A. 2C:43-6a(4). All sentences imposed were concurrent to one another. The aggregate base custodial sentence imposed was seven years.*fn5 Defendant contends this aggregate term was manifestly excessive.
He further contends the trial court's decision in imposing sentence was based on a deliberative process that considered as a determinative factor the then-existing seven-year presumptive term on the second-degree offenses, and that the court imposed a term on the fourth-degree offenses in excess of the then-presumptive nine-month term, which necessitates a State v. Natale remand.
The judge properly followed and applied the sentencing guidelines and criteria, the sentences imposed are not manifestly excessive and they do not shock our judicial conscience. State v. Ghertler, 114 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 362-64 (1984). State v. Natale is not implicated on counts three, five and seven, as that case only applies when a sentence exceeds the former presumptive term. The sentence on the second-degree offenses was not imposed in excess of the then-presumptive seven-year term. Although all sentences imposed were concurrent with each other, a Natale remand for resentencing is required on counts one and two, fourth-degree aggravated assault, in which the court imposed the maximum terms of eighteen months.
Conviction affirmed; counts one and two remanded for resentencing.