On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-03-537.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Gilroy and Baxter.
Defendant Gordon Johnson appeals from his November 30, 2004 conviction, after a trial by jury, on charges of first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1)(2) (count eight); second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count nine); third degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count ten); fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count eleven); third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count twelve); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count thirteen).*fn1 After merging counts nine, ten, eleven, and thirteen, the judge sentenced defendant on count eight (attempted murder) to a fifteen year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to N.J.S.A. 2C:43-7.2, and on count twelve imposed a consecutive four year term of imprisonment.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE IDENTITY BEYOND A REASONABLE DOUBT.
II. DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BECAUSE THE STATE INTRODUCED PRIOR INCONSISTENT STATEMENTS OF ITS OWN WITNESS WITHOUT SATISFYING THE REQUIREMENTS OF N.J.R.E. 803(A)(1).
III. THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY ALLOWING THE PROSECUTOR, IN VIOLATION OF STATE V. SILVA, 131 N.J. 438 (1993), TO IMPEACH A DEFENSE WITNESS WITH HER PRETRIAL SILENCE.
IV. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF NINETEEN YEARS BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
V. THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S ATTEMPTED MURDER AND UNLAWFUL POSSESSION OF A WEAPON CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).
We disagree with all of defendant's contentions, and affirm the conviction and sentence.
On October 17, 2002, seventeen year old Eric Thomas was on Pacific Avenue in Atlantic City on his way home from his aunt's house when he saw his friend Dennis Bell, who lived nearby. Bell was selling marijuana in front of a row home on Pacific Avenue, and Thomas stopped to speak to him. While the two were engaged in conversation, two males and a female on bicycles pulled up near them. The female, later identified as A.L.,*fn2 was approximately sixteen years old, and Thomas had seen her in Bell's neighborhood on two prior occasions. One of the males was Satif Martin, age sixteen, with whom Thomas had gone to school from sixth grade into high school. Thomas did not know the other male.
A.L. approached Bell, demanding that he sell her some marijuana at a reduced price, and when he declined to do so, she returned to the other two, who were still on their bicycles, and said loudly, "give me the burner." Martin handed A.L. a handgun that she put in her pocket. A.L. then approached Thomas, and while aiming the gun at him, went through his pockets and pulled out a twenty dollar bill. Handing that money to Bell, she demanded a twenty dollar bag of marijuana. Bell balked because he knew the money A.L. handed him was actually Thomas's money. Thomas retrieved his money from A.L.'s grasp, after which the unidentified male engaged in a loud confrontation with Thomas, put a gun to the left side of Thomas's face and pulled the trigger. At that point, the shooter, Martin and A.L. fled down the street.
The bullet that entered Thomas's left cheek came to rest in his forehead, shattering nasal and orbital bones, and leaving him blind in his right eye. When police arrived at the scene, they observed Thomas lying on the ground, bleeding heavily from the nose and mouth, with the bullet visibly protruding from under the skin of his forehead. Though disoriented, Thomas was able to tell one officer "three black males on bikes."
While police were investigating, Detective Craig Argus was approached by Bell, but Bell told him that he did not want to be seen talking to police. After obtaining consent from Bell and his mother, Argus precipitated a false arrest of Bell, placing Bell into a patrol car. Argus transported Bell to an area where police had detained two black males matching the description of those involved in the shooting. Upon seeing them, Bell immediately stated that those two were not involved, adding that the individuals involved in the shooting were actually two males and one female.
Bell was then taken to the police station where he met with Detective Lee Hendricks. Bell told Hendricks that the male who shot Thomas was named Gordon, that Gordon's father worked as a janitor at Atlantic City High School, that Gordon lived in the Back Maryland neighborhood of Atlantic City, and that Gordon had a half-brother ...