September 28, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GORDON JOHNSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 named Thomas Chappell. Bell also provided police with the first names of Martin and A.L.
At approximately 2:00 a.m., Atlantic City police officers took defendant and his half-brother to headquarters for questioning. Police placed them in an interrogation room, where they remained until 3:30 a.m. when Bell was brought back to the police station to see if he recognized either one as being involved in the shooting. Through a one-way mirror, Bell positively identified defendant as the person who shot Thomas, and stated that Chappell was not involved. Police released Chappell.
While waiting for Bell's arrival, defendant, in the presence of his father, was interviewed by Detective George Cohen. When Cohen asked defendant about his whereabouts during the time of the shooting, defendant replied that he had been on a bus going to a movie theater. Defendant later admitted that he had been in the area of the shooting and that he had had a verbal confrontation with Thomas. Defendant advised Cohen that Martin had also been in the area. After Bell identified defendant, defendant provided Cohen with a tape-recorded statement and police formally charged defendant in connection with Thomas's shooting.
Approximately two weeks after the shooting, Thomas was discharged from the hospital and police visited him at his home on October 29, 2002. There he viewed three different photo arrays. From the first one, after being shown six different photographs sequentially, Thomas identified defendant's photo as that of the shooter. Police used the same procedure for the other two arrays, after which Thomas identified Martin and A.L. as being present.
At trial, Bell recanted his earlier statements to police, claiming that he had no memory of the events of October 17, 2002 because he was intoxicated. He also testified that he could not remember talking to police after the shooting or telling police that he was able to identify the shooter.
After Bell recanted, the court conducted a hearing outside the presence of the jury. Applying the criteria the Court articulated in State v. Gross, 121 N.J. 1, 10 (1990), the judge held that the State would be permitted to confront Bell with the statement he provided to the police on the night of the shooting.
Defendant also testified at trial, and described his activities on the day of the shooting. After visiting with friends, he went to the movies, and then returned to his great-grandmother's home before 7:00 p.m., where he remained until he went to sleep at 10:00 p.m. Five relatives and friends of defendant testified that defendant was inside, or immediately outside, his great-grandmother's home during the time frame of 6:00 p.m. to midnight that night, including his half-sister Anna Chappell, and his great-grandmother Elizabeth Strickland.
Benjamin Alford testified as a defense witness, explaining that he bought marijuana the night of the shooting from Bell, whom he called Murda, and that he was present shortly thereafter when someone was shot. When asked by defense counsel to view everyone in the courtroom and indicate whether he saw the person who fired the gun, he answered "no."
On rebuttal, the State called A.L. who had previously pled guilty and as part of her plea agreement, had obligated herself to testify at defendant's trial. She testified that defendant was "around" at the time she argued with Thomas about the price of marijuana. She claimed that after fighting with Thomas, she departed, leaving Martin and defendant together with Thomas. When she was five blocks away, she heard a gunshot. Although she testified at trial that she had not seen defendant in the area as she rode away on her bicycle, she acknowledged that she had previously told police that Martin and defendant were together as she left the area ahead of them.
At the conclusion of the trial, the jury returned a guilty verdict against defendant on each charge upon which the jury had deliberated.
In Point I, defendant argues that the trial court erred when it denied his motion for a judgment of acquittal because the State failed to prove identity beyond a reasonable doubt. In particular, he argues that he was convicted of the attempted murder of Eric Thomas based only on "contradictory and uncorroborated eyewitness identifications." Defendant points to Bell's trial testimony that he had been intoxicated at the time of the shooting and therefore had no memory of the events of October 17, 2002. He also argues that Thomas's identification of him was equally fallible in light of Thomas's consumption of alcohol that night and Thomas's testimony that he had not paid any attention to or spoken with the shooter. In light of that testimony, and the failure of the State to produce any physical evidence linking defendant to the shooting of Thomas, defendant argues that Judge Isman erred when he denied the post-trial motion for a judgment of acquittal. We disagree.
A trial judge is obliged to grant a defendant's motion for a new trial only "if required in the interest of justice." R. 3:20-1. The Rule further provides that the "trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." Ibid.
In denying defendant's motion for a judgment of acquittal, Judge Isman made detailed findings of fact. In particular, he held that there was sufficient testimony from Thomas, Alford and A.L. regarding defendant's presence at the scene to support defendant's conviction. The judge analyzed Bell's recantation of his initial statement to police and explained why the jury would have been entitled to believe Bell's original statement to police rather than his recantation at trial:
[T]here's no question in my mind, and I don't think there was much question in the jury's mind, that the original statement of Dennis Bell was the truthful one. What he indicated in court with couldn't remember, doesn't remember this, didn't say that, was drunk, was under the influence . . . it had no ring of truth to it at all. None whatsoever.
The judge further reasoned that the original statement of Dennis Bell had "a ring of truth to it. It sounded right. It sounded honest. It sounded credible."
The judge also explained that the jury was charged on the State's obligation to prove identity of the shooter beyond a reasonable doubt, on the criteria the jury should utilize in evaluating a defendant's claim that he was elsewhere at the time the crime was committed, and on how to evaluate the testimony of a recanting witness like Bell. The judge remarked:
Clearly this jury knew that they had to be convinced beyond a reasonable doubt that Gordon Johnson . . . fired the weapon before they could convict him of anything in this case. . . . And this jury evidently accepted that that was proven by the State notwithstanding the alibi testimony. And with all due respect to some of the alibi witnesses, my take on it was [it] didn't sound right. They got tripped up too easily when little things were taken that they were not necessarily ready for.
The judge also reasoned that because the alibi witnesses were related to defendant, the jury might have chosen to disbelieve their testimony.
Additionally, the judge referred to the State's evidence that Thomas himself had selected defendant's photograph from a sequential photo array approximately two weeks after the shooting and had unequivocally testified at trial that defendant was the individual who shot him. Indeed, Thomas stated "there ain't no doubt in my mind" when asked whether he had any doubt that defendant was the person that shot him. After also reviewing the testimony of Alford and Thomas, the judge denied the motion, finding there was no basis in law to grant a new trial.
A reviewing court should defer to the credibility findings of the trial judge because the trial judge is in a better position to make such determinations based upon the judge's ability to observe the witnesses as they testify. State v. Locurto, 157 N.J. 463, 472-74 (1999). "Appellate Courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Id. at 474 (quoting from State v. Jamerson, 153 N.J. 318, 341 (1998)).
Although we defer to the trial judge's credibility determinations, we apply the same standard as the trial judge did to decide if defendant should have been granted a new trial. State v. Moffa, 42 N.J. 258, 263 (1964). Accordingly, we must determine whether Judge Isman was correct when he determined that the verdict was not against the weight of the evidence and that the interest of justice did not demand a new trial.
The jury received detailed instructions from the judge on identification, alibi testimony and witness recantation. The jury applied that law to the considerable testimony that it heard from the State's witnesses and from defendant's witnesses. As Judge Isman observed, there was ample evidence from which the jury could have determined beyond a reasonable doubt that defendant was the person who shot Thomas. The jury was entitled to credit Bell's original account of events instead of his in-court testimony. Furthermore, we agree with the State that Bell's identification of defendant was based upon having known defendant while the two were growing up. Not only had Bell played football with defendant, but Bell also knew his name, where he lived, his father's occupation and that he had a half-brother named Thomas Chappell. As the State correctly argues, this is not an instance where Bell picked out a stranger and then recanted. Instead, there was ample evidence before the jury from which it could conclude that Bell's earlier identification of defendant was truthful. That evidence, combined with the unequivocal in-court testimony of Thomas that defendant was the person who shot him, demonstrates that there is no meritorious reason to disturb Judge Isman's comprehensive ruling in which he denied defendant's motion for a new trial.
Defendant argues in Point II that the court committed reversible error when it allowed the State to introduce the October 17, 2002 prior inconsistent statement of its own witness, Dennis Bell. Defendant argues that the statement should have been barred pursuant to N.J.R.E. 803(a)(1) because it did not have sufficient indicia of reliability to warrant its admission. N.J.R.E. 803(a)(1)(A) provides that a witness's prior inconsistent statement is admissible if "contained in a sound recording . . . made . . . in circumstances establishing its reliability," so long as the prior statement is otherwise admissible. Bell's statement to police was written, but was not sworn under oath, and accordingly the State was obliged at the N.J.R.E. 104(a) hearing to establish the reliability of that statement. In deciding whether a sufficient evidentiary foundation has been established under Rule 803(a)(1), the trial judge is obliged to consider the following factors:
(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).]
Here, at the hearing outside the presence of the jury, the court heard the testimony of Detective Hendricks, who described Bell's demeanor and mental state as sober and not intoxicated at the time Bell provided his written statement. At the conclusion of the hearing, the judge determined that Bell was not intoxicated on October 17, 2002, when he provided his written statement to Hendricks. In a comprehensive oral opinion, Judge Isman thoroughly analyzed the facts, and reached conclusions of law that are fully supported by the testimony before him. Defendant's arguments to the contrary are without merit.
In Point III of his brief, defendant argues that the trial court violated his 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. As the State correctly argues, defendant failed to object during cross-examination when the State questioned Chappell about her failure to contact the police to provide them with information about defendant's whereabouts at the time of the shooting. In light of defendant's failure to object, we evaluate defendant's Silva claim on appeal under the plain error standard. See R. 2:10-2 (error not brought to the attention of the trial court will be disregarded on appeal unless "clearly capable of producing an unjust result").
Here, defendant's half-sister, Anna Chappell, testified that defendant had been at their great-grandmother's home at the time of the shooting. On cross-examination, the State impeached her with her failure to come forward with this information immediately following defendant's arrest. Defendant claims that the State did not lay the foundation required by Silva before impeaching her.
In State v. Silva, the Court held that if a witness appears to know of the charges against a defendant and would naturally be expected to have come forward with alibi testimony, the witness may be cross-examined about those circumstances of non-disclosure. Silva, supra, 131 N.J. at 447-48. In so holding, the Court based the admissibility of such testimony on its similarity to prior inconsistent statements. Id. at 445. However, the Court also recognized that there are situations where "'it would not be natural for a witness to offer exculpatory evidence to law enforcement officials. In these circumstances, the witness's failure to speak is perfectly consistent with his trial testimony. Some individuals, for example, may believe that the disclosure of their information to the police would be futile.'" Id. at 446-47 (quoting Commonwealth v. Brown, 416 N.E.2d 218, 224 (Mass. 1981)).
Therefore, before a witness may be so impeached, the State must first persuade the court that the silence was inconsistent with the witness's trial testimony. Id. at 447. To do so, the State must establish that "the witness was aware of the nature of the charges pending against the defendant, had reason to know he had exculpatory information, had a reasonable motive to act to exonerate the defendant, [and] was familiar with the means to make the information available to law enforcement authorities." Id. at 447-78.
Defendant contends that the State failed to lay the proper foundation to show that Chappell's pretrial silence was inconsistent with her trial testimony. Specifically, the State never established that it would be "natural" for her to come forward immediately after defendant's arrest and volunteer the alibi information. Defendant argues that it would not have been natural for her to come forward because she was present when her great-grandmother Elizabeth Strickland attempted to provide police with an alibi for defendant and was rebuffed by police. Defendant maintains that under such circumstances, Chappell's silence was not inconsistent with her trial testimony and that the State therefore should not have been allowed to impeach such a "key" defense witness in a trial that turned on credibility determinations.
In contrast, the State argues that because Chappell never claimed that a fear of being rebuffed kept her from going to the police with information about defendant's whereabouts, the Court's decision in Silva is not implicated. The State is correct. Chappell testified that she did not go to police because she had her own "situations" to deal with and did not realize exactly how serious defendant's problems were. Although Strickland chose not to approach police with detailed information about defendant's whereabouts because police rebuffed her initial efforts, her reasons, as the State correctly argues, should not be "imputed back" to Chappell, when Chappell herself proffered no such reason.
Moreover, Chappell was not the only alibi witness to testify in defendant's behalf. Defendant also presented the alibi testimony of his great-grandmother, his friend Dennis Faulkner, his half-brother Thomas Chappell and his father Gordon Johnson, Sr. Even if the cross-examination of Chappell about her pretrial silence was error, which it was not, any such improper cross-examination was not "clearly capable of producing an unjust result" in light of the numerous other alibi witnesses who testified in defendant's behalf. Accordingly, there is no merit to defendant's claim that the cross-examination of Anna Chappell about her pretrial silence created reversible error.
In Point IV of his brief, defendant argues that the sentence imposed was excessive because a qualitative weighing of the aggravating factors does not support a sentence of nineteen years imprisonment, of which eighty-five percent of fifteen years is to be served without eligibility for parole. In Point V, defendant additionally argues that the imposition of consecutive sentences for his attempted murder and unlawful possession of a weapon convictions was improper, and violative of the principles established by the Court 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). We consider those arguments jointly, and conclude that neither argument has merit.
The judge found the existence of aggravating factor N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another offense, and aggravating factor N.J.S.A. 2C:44-1(a)(9), the need for deterrence. He then sentenced defendant to fifteen years imprisonment on the charge of attempted murder. Numerous factors in the record justify the judge's conclusion that those aggravating factors were applicable, including: the need to deter defendant and others from resorting to the use of a gun to settle petty disputes; the need to deter defendant and others from using a gun to inflict a serious life-long injury on another person, namely blindness in the victim's right eye; and the risk defendant will commit another offense, as evidenced by his juvenile adjudications of delinquency for possession of CDS and violation of probation. In light of these aggravating factors, a sentence in the middle of the first degree range for attempted murder is not so unreasonable as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).
Defendant further argues that the court failed to consider the non-statutory mitigating factor of his young age at the time the crime was committed. Defendant was sixteen at the time he attempted to murder Thomas. In light of defendant's juvenile record and his willingness to resort to a handgun to settle a trivial dispute, we do not consider Judge Isman's failure to find defendant's age to be a mitigating factor to constitute a misapplication of his discretion. State v. Dalziel, 182 N.J. 494, 504-05 (2005).
Accordingly, we decline to disturb the sentence that the judge imposed on the attempted murder conviction in count eight. The judge provided thoughtful and proper reasons for the sentence that he imposed, and we will not substitute our judgment for his. State v. Paduani, 307 N.J. Super. 134, 148 (App. Div.), certif. denied, 153 N.J. 216 (1998).
We likewise reject defendant's argument that the imposition of a consecutive sentence on count twelve was improper. Defendant argues that the Yarbough factors militate in favor of concurrent sentences on counts eight and twelve. While he is correct that Yarbough prohibits the double counting of aggravating factors to support consecutive sentences, id. at 630, and it appears here that the trial judge may have, to some extent, relied on the same aggravating factors to support both sentences, we agree with the State that the other factors the Court articulated in Yarbough support consecutive sentences here. In particular, Judge Isman provided reasons for imposing consecutive sentences on the two counts. First, the crimes and their objectives were predominantly independent of each other because the objective of count eight was to take Thomas's life, whereas the objective of count twelve was to possess a firearm without complying with the statutory requirement for lawful possession of a gun. Second, the convictions for which sentences were imposed were not numerous. Third, the victims of the two offenses were different because Thomas was the sole victim of the attempted murder, whereas society as a whole is the victim of any person who is in possession of a weapon, however temporarily, without complying with the statutory prerequisites for same.
Defendant also relies on State v. Miller, 108 N.J. 112, 122 (1987) for the proposition that factors relied on to sentence a defendant to a maximum term should not also be used to impose consecutive sentences. While as we have noted, the court appears to have relied on the same aggravating factors to justify the length of the prison term on the attempted murder conviction that it relied on to impose consecutive sentences, Miller is distinguishable. In Miller, the judge imposed the maximum sentence, id. at 115, whereas here, the judge imposed sentences in the middle of the statutory range. For that reason, defendant's reliance on Miller is misplaced.