November 23, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IKINO O. WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-06-1541.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Lintner, Graves and Sabatino.
Following a seven-day jury trial, defendant Ikino O. Williams was convicted of first-degree attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, and second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; Defendant received a nineteen-year prison sentence, subject to an 85% parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. He now appeals his convictions and his sentence, which we affirm in all respects.
The State's proofs at trial adduced the following facts, which are relevant to the issues raised on appeal. The events in question occurred in Asbury Park in December 2003. At the time, defendant was living with his girlfriend Eileen Stevens, with whom he has a son, at her house on Summerfield Avenue. The victim of the attempted murder, Kevin Geddes, was a friend of Stevens's. For reasons not apparent from the record, Geddes kept most of his clothing stored in Stevens's basement. Geddes stopped at Stevens's house nearly every day, and had frequent contact with defendant. Defendant and Geddes did not get along, and they had exchanged words on prior occasions.
On the afternoon of December 21, 2003, defendant and Geddes argued about money in a telephone conversation. During that call, defendant was at Stevens's house and Geddes was elsewhere. After hanging up the phone, Geddes decided to go over to Summerfield Avenue and confront defendant in person. According to Geddes, when he arrived, the two men had a "confrontation" on the street in front of Stevens's house, and then a "scuffle." At one point, the two men broke apart, and, according to Geddes, defendant then brandished a knife. In response, Geddes picked up a piece of wood lying nearby and smashed out the windows on defendant's Porsche that was parked in front of the house.
At this point, defendant allegedly told Geddes, "I'll be back. I'm going to get my heat." Defendant then drove away in a white car with two friends, David Holman, whose nickname was "Peto," and a man Geddes knew only as "Sway." Geddes knew that the term "heat" referred to a gun, but he did not take defendant's threat at the time seriously. Geddes left the scene and went to his brother's house nearby for about a half-hour. He then returned to Stevens's house. Also present at Stevens's house at this time were her father, Leland Washington, and Geddes's former girlfriend, Diana Overton.
According to Geddes, as he approached Stevens's house, he recognized the same white car that defendant had driven away parked a short distance up the street. Geddes saw three people in the car, but could not discern their identities. After he entered Stevens's house, Holman came inside and allegedly told Geddes, referring to defendant, "he['s] out there. You need to get it over with. Fight one on one." Geddes obliged. As he was leaving the house Geddes picked up a bottle, intending to smash defendant's car again with it. However, Geddes contended that he dropped the bottle on the lawn after Holman told him he would not need it. Overton, however, testified that Geddes threw the bottle at the Porsche, smashing yet another of its windows.
As Geddes approached the white car, expecting then to fight defendant, the driver side door opened. Geddes then heard a gunshot. Geddes saw defendant get out of the car, and he realized he was being fired at. The initial shot missed Geddes, but as he turned to flee, a second shot hit him in the buttocks and he fell to the ground. Geddes was hit twice more, and then he turned over on the ground and saw defendant approaching with the gun. As Geddes testified, "[defendant] was walking up on me, stood over top of me, [and] started shooting me."
As Geddes further recounted, defendant, standing over Geddes, then continued to fire at him, hitting him several times, in the stomach, legs, arm and hand. Meanwhile, Geddes tried to roll away and cover his face from the gunfire. Geddes then heard Holman yell to defendant, "Face, come on. It's the police coming." Defendant stopped shooting, and drove away in the white car. At trial, Geddes identified defendant as the person who shot him, and also testified that he knew defendant by his street name, "Face."
Diana Overton, Geddes's ex-girlfriend, testified at trial that she was present at Stevens's house when Geddes was shot. She generally corroborated Geddes's account of what happened. Overton specifically testified that she witnessed the first fight between defendant and Geddes, when she saw the two men "square up in the middle of the street." Overton also stated that she saw defendant pull a knife on Geddes, and saw Geddes smash defendant's car windows out with a piece of wood. After defendant and Geddes went their separate ways the first time, she saw defendant return to Stevens's house, wearing different clothes. He went upstairs to speak with Stevens. After about five minutes, defendant left the house, and Overton assumed he had left the area. Shortly after that, Geddes returned to the house. Geddes told Overton that he intended to fight defendant if he returned. Holman then came into the house and told Geddes that defendant was outside waiting for him.
Overton testified that, at this point, she urged Geddes not to go back outside and face defendant, because "[i]t didn't feel right." Upon learning that defendant's car was parked up the street in a more darkly-lit area, she became uneasy about the situation.
After Geddes followed Holman outside, Overton also went outside onto the porch, while the others remained in the house.
From her vantage point, Overton saw Geddes smash more windows out of defendant's Porsche. She then observed Geddes walk towards the car across the street in which defendant, Holman, and "Sway" were sitting.
Overton saw defendant get out of the car and fire a gun at Geddes. She testified hearing a total of six shots. She saw defendant walking towards Geddes, who was lying the middle of the street. Overton then watched defendant get into the white car and drive away.
At this point, Overton, who had CPR training, ran to where Geddes was lying in the street and called 9-1-1 for help. She attempted to put pressure on Geddes's stomach wound to stop the bleeding. Not long thereafter, an ambulance arrived.
About two hours after the shooting, Overton went to police headquarters and gave a statement recounting what she saw. She identified defendant, by both his full name and his nickname "Face," as the person who shot Geddes.
Defendant offered a different version of events through the testimony of Washington, Stevens's father. According to Washington, he and defendant were cooking dinner in the kitchen when Geddes came in and began antagonizing defendant. Washington testified that defendant tried to avoid arguing with Geddes, but that Geddes followed him outside and "kept trying to provoke [defendant] to fight." Washington testified that he observed the first fight between defendant and Geddes and denied that, in that encounter, defendant ever brandished a knife.
With respect to the second altercation between defendant and Geddes, Washington stated that he remained inside the house, along with Overton and Stevens and Stevens's three children. Consequently, Washington did not witness the second encounter.
After he heard gunshots outside, Washington directed Overton and Stevens to take the children to the rear part of the house. He went outside to investigate. Washington then saw Geddes lying in the street and a car "speeding off." He contended that Overton did not come outside until after the incident was over.
Geddes was taken by ambulance to the Jersey Shore Regional Trauma Center, where he underwent emergency surgery to stop internal bleeding in the stomach and bowel area. Ivan Maldonado, M.D., the trauma surgeon who treated Geddes that night, testified that, without emergency treatment, Geddes would have died from his wounds. Dr. Maldonado also confirmed that Geddes had gunshot wounds in his left thigh, left buttocks, right flank, and right thigh, two gunshot wounds in his lower back, and wounds in his elbow and hand. Dr. Maldonado could not ascertain whether each wound was an exit or entry wound, and he had no information regarding the trajectory of bullets through Geddes's body.
After investigating the shooting, the police obtained a warrant for defendant's arrest. About one week later, on the evening of December 28, 2003, Asbury Park Police Officer Dennis Blake was at police headquarters filling out reports, when he received a phone call from defendant. Defendant identified himself to Officer Blake. He stated that he was in Long Branch, that he knew of the arrest warrant, and that he wanted to turn himself in.
Officer Blake knew who defendant was, because he had "r[u]n into him a few times." However, the officer was not assigned to the investigation of Geddes's shooting, and he did not know details about the investigation aside from "very little bits of information" that were provided during the daily shift briefings. Officer Blake was, however, part of a team of officers that had gone to Summerfield Avenue the morning of December 28, 2003 to look for defendant, just hours prior to when he turned himself in.
When defendant came into police headquarters to surrender, Officer Blake did not immediately handcuff defendant. Instead, the officer led him to the booking area. Defendant was not given any Miranda*fn1 warnings at this time. Officer Blake then handled the processing of defendant.
Testifying at a preliminary hearing under N.J.R.E. 104 before trial, Officer Blake stated that this processing consisted of filling out an "arrest uniform sheet," and that this form is used by the Asbury Park Police Department in processing every arrest. Officer Blake noted that the arrest sheet was a Monmouth County form. He thought, but was not sure, that the other police departments in Monmouth County used the same form. The form in question consists of basic informational questions and empty "blocks," where the officer fills in the spoken answers given by the arrestees. After his arrest sheet was completed, defendant was fingerprinted and photographed, pursuant to standard booking procedures.
As he filled out the arrest sheet, Officer Blake asked defendant, among other things, for his first name, last name, and middle initial, and for his home phone number. Defendant provided this information, which Officer Blake wrote down on the arrest sheet. Officer Blake then asked defendant, pursuant to a stock question on the arrest sheet, if he had any aliases or nicknames. Defendant replied to Officer Blake that his alias was "Face." Officer Blake wrote that alias in the corresponding space on the arrest sheet. The officer then asked defendant for his address, date of birth, height and weight, to which defendant also provided answers. When asked at the Rule 104 hearing why he had asked defendant for this information in the booking process, Officer Blake replied, "Because there was an active warrant out for [defendant], it's part of a procedure we must do to put it on a paper, put it on the arrest report itself."
Thereafter, defendant was charged in a three-count indictment. The indictment included, in addition to the attempted murder charge (count one) and the weapons charge (count two) previously mentioned, an additional charge for second-degree possession of a weapon by a convicted person, in violation of N.J.S.A. 2C:39-7b (count three).
Prior to trial, defendant moved to preclude the State from admitting his statement to Officer Blake that his alias was "Face." After the Rule 104 hearing, the trial judge ruled that the statement was admissible. Rejecting defendant's argument that the officer's question about alias names had been posed to defendant for an investigatory purpose, the judge instead found that "the questioning by Officer Blake in this matter was routine and ministerial. It was part of the booking procedure."
The case was tried over the course of three weeks in September 2005. The State presented the testimony of Geddes, Overton, Dr. Maldonado, and Officer Blake, as well as testimony from Asbury Park Police Officer Anthony Butler and Detective Paul Jones.
Defendant did not testify on his own behalf, but offered the testimony of Leland Washington, as well as Police Officer Patsy Petro, Detective Lisa Smith, and defendant's own investigator Timothy Watson. His theory at trial was that he was not the shooter and Geddes and Overton were not credible witnesses. Officer Petro and Detective Smith testified about certain details of the police investigation. Watson, the defense investigator, testified about his observations of the crime scene.
After a day and a half of deliberations, the jury returned a guilty verdict on counts one and two. The prosecutor then agreed to dismiss count three, but reserved the right to reinstate it if defendant's convictions were overturned on appeal.
Defendant was sentenced on December 16, 2005. After merging the weapon offense in count two into the attempted murder charge, the judge sentenced defendant to nineteen years on count one, along with the previously-stated period of parole ineligibility under the NERA. Specifically, the judge found that several aggravating factors applied, including, among other things, the risk that defendant would commit another offense, the extent of defendant's prior criminal record, and the need for deterrence. The judge found that no mitigating factors applied.
In his ensuing appeal, defendant argues:
SINCE THE PRIMARY MOTIVATION OF OFFICER BLAKE WAS TO ESTABLISH CORROBORATIVE EVIDENCE OF THE DEFENDANT'S GUILT, THE DEFENDANT'S ORAL STATEMENT THAT HIS ALIAS WAS "FACE" SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS MADE IN RESPONSE TO A "NONMINISTERIAL" QUESTION.
THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO CONFRONTATION IN ADMITTING THE OUT-OF-COURT STATEMENT PURPORTEDLY MADE BY DAVID "PETO" HOLMAN.
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW).
(A) THE PROSECUTOR IMPROPERLY MALIGNED DEFENSE COUNSEL (NOT RAISED BELOW).
(B) THE PROSECUTOR'S ASSERTION THAT THE WOUNDS SUSTAINED BY MR. GEDDES WERE PROOF THAT THE DEFENDANT WAS STANDING OVER HIM WAS IMPROPER BECAUSE IT REQUIRED SUPPORTING EXPERT TESTIMONY.
IMPOSITION OF THE [NINETEEN] YEAR BASE CUSTODIAL SENTENCE ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ATTEMPTED MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND CONSTITUTES AN ABUSE OF JUDICIAL DISCRETION BECAUSE THE TRIAL COURT FAILED TO CONSIDER THE MITIGATING FACTORS THAT WERE PRESENT.
After fully considering these points, we conclude that none of them warrant a reversal of defendant's convictions or his resulting sentence.
Defendant first contends that his statement to the booking officer at the police station, Officer Blake, disclosing that his nickname is "Face," was improperly admitted at trial because Officer Blake did not issue Miranda warnings beforehand. We disagree.
"[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation." Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed. 2d 297, 307 (1980). Since defendant was obviously in custody when he was booked at the stationhouse, the pertinent question, for Miranda purposes, is whether he was subjected by Officer Blake to a custodial interrogation, or the "functional equivalent" of an interrogation. Id., 446 U.S. at 301, 100 S.Ct. at 1689, 64 L.Ed. 2d at 308. As applied by our courts, the test is "'whether a suspect's incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response.'" State v. Brown, 282 N.J. Super. 538, 549 (App. Div.), certif. denied, 143 N.J. 322 (1995) (quoting State v. Ward, 240 N.J. Super. 412, 417 (App. Div. 1990)).
In assessing whether a custodial interrogation or its functional equivalent has transpired, we have recognized that "booking procedures and the routine questions associated therewith are ministerial in nature and beyond the right to remain silent." State v. Mallozzi, 246 N.J. Super. 509, 515 (App. Div.), certif. denied, 126 N.J. 331 (1991). Hence, in Mallozzi, we held that a police officer's notification to an arrestee, as part of a standard booking procedure, of the nature of the charges against him, was not a custodial interrogation requiring a Miranda warning. Id. at 516. In that same vein, we previously ruled in State v. Cunningham, 153 N.J. Super. 350, 352 (App. Div. 1977), that routine booking questions, which had asked an arrestee where he lived and who he lived with, were "ministerial in nature," and did not amount to a custodial interrogation. Ibid.
The same is true here. When he asked defendant if he was known by any other names or aliases, Officer Blake was simply following a routine protocol, one contained in a standard intake form. The question was legitimately designed to help assure the identity of the person that the police had arrested. The question was not specially crafted for defendant, based upon some police design to link him to Holman's exclamation of the nickname "Face."
After considering Officer Blake's account of these matters at the Rule 104 hearing, the trial judge found him to be a credible witness. In particular, the judge found credible the officer's assurance that he had confined his questioning of defendant to only those questions listed on the arrest uniform sheet, and that he did not attempt to follow up on defendant's answers. We do not second-guess these credibility findings, which amply support the judge's evidential ruling. Mallozzi, supra, 246 N.J. Super. at 514.
We reject defendant's claim that the booking process that revealed his nickname should be likened to cases in which the police had improperly elicited incriminating information from suspects through coercive techniques. In particular, we see no fair analogue here to Ward, supra, 240 N.J. Super. at 417, in which we found a custodial interrogation occurred where a detective visited an arrestee in his cell, after he had already been booked, and showed him photographs of two suspects in a robbery for which the arrestee was also a suspect. Nor do we find the present case akin to Brown, supra, 282 N.J. Super. at 550, in which detectives had given a defendant in custody a "detailed and apparently well-prepared" presentation of the evidence against him, which prompted him to make statements about his conduct relating to the crimes under investigation.
Unlike Ward and Brown, we do not have before us a situation of prolonged contact between police and a defendant in custody suggestive of a pre-determined strategy to extract incriminating statements. Instead, we have, as the trial judge justifiably concluded, "routine and ministerial questions that were necessary for booking [defendant] on the arrest."
In sum, we discern no violation of the Miranda doctrine and no error in the admission of defendant's response to the booking officer, divulging his alias.*fn2 The trial court's ruling is sustained.
We are similarly unpersuaded by defendant's second point on appeal, contending that the judge erred in admitting Holman's out-of-court exclamation, "Face, come on. It's the police coming." Defendant specifically argues that Holman's utterance, which was overheard by Geddes, is inadmissible hearsay, and that he was unconstitutionally deprived of the opportunity to cross-examine Holman, who did not testify at trial.
Defendant's claims of error are easily rejected because Holman's utterance was not offered for its truth. There is no dispute that when these words were spoken the police were, as Holman accurately sensed, on their way to the scene of the shooting. Nor is there any doubt that Holman and the shooter fled from the scene before the police arrived. The prosecutor was not offering Holman's statement to establish these truths. Instead, the prosecutor offered it for the limited purpose of showing the manner in which Holman addressed the shooter, calling him "Face." The term was a salutation, not an assertion. Having thus obtained the attention of the shooter, Holman's exclamation caused "the listener [to take] certain action as a result thereof," i.e., ceasing fire and running away. Spragg v. Shore Care, 293 N.J. Super. 33, 56 (App. Div. 1996).
Given the State's non-assertive use of Holman's words, the general rule for excluding hearsay does not apply. N.J.R.E. 801(c); see also State v. Long, 173 N.J. 138, 152 (2002).*fn3
Additionally, there is no Confrontation Clause violation here, because Holman's remark to his companion before the police arrived was clearly non-testimonial in nature. Davis v. Washington, ___ U.S. ___, ____, 126 S.Ct. 2266, 2274, 165 L.Ed. 2d 224, 237 (2006); Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed. 2d 177, 194 (2004).
Defendant next argues that the prosecutor made improper remarks in summation that allegedly deprived him of a fair trial. This argument does not require extended discussion. R. 2:11-3(e)(2). We have carefully considered the remarks in question, one of which was not objected to by defense counsel at trial. We are satisfied that the remarks were not "'clearly and unmistakably improper,'" and could not have "'substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001)); see also State v. Wakefield, 190 N.J. 397, 437 (2007).
To the contrary, we view the remarks, which commented in various ways on the strengths of the State's proofs and the weaknesses of the defendant's position, as falling within the bounds of fair advocacy. We particularly discern no reversible error in the prosecutor's argument that Geddes was shot at close range, an inference that was not specifically advanced by Dr. Maldonado, but which was a fair inference from the accounts of the witnesses and the photographs of the gunshot wounds.
Lastly, defendant argues that his nineteen-year sentence for the attempted murder is manifestly excessive. This argument also warrants little comment. R. 2:11-3(e)(2). We are satisfied that the judge fairly identified and weighed the pertinent aggravating factors, including but not limited to defendant's prior adult convictions and the severity of his repeated attempts to take Geddes's life with a firearm. We are also satisfied, given the deadly force used by defendant in retaliation for having his car windows broken, that the judge had ample reason to find no mitigating factors present, including defendant's claim of "strong provocation," N.J.S.A. 2C:44-1(b)(3). The sentence, considerable as it is, was below the maximum of the range for first-degree crimes, and it does not clearly "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).