December 12, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARDELL HUNT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, No. 03-12-4373-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Wefing, Parker and Lyons.
Tried to a jury, defendant was convicted of murder, N.J.S.A. 2C:11-3(a); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was acquitted of terroristic threats, N.J.S.A. 2C:12-3(a), and retaliation against a witness, N.J.S.A. 2C:28-5(b). The trial court sentenced defendant to forty-five years in prison for murder, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In addition, it imposed a five-year term, with a three-year period of parole ineligibility, to be served concurrently, for possession of a weapon for an unlawful purpose, and a five-year consecutive term for unlawful possession of a weapon. The trial court also imposed the appropriate fines and penalties. Defendant has appealed. Having reviewed the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.
The victim of the homicide was sixteen-year-old Markquise Hill, who was shot to death in the early evening hours of November 25, 2002.*fn1 Markquise was the younger brother of Anthony Hill, with whom defendant had a fight several weeks earlier. Defendant assaulted Anthony because he had allegedly not paid defendant fifty dollars due from a drug transaction Anthony had conducted on defendant's behalf. The State's theory of the case was that defendant shot Markquise either in retaliation for Anthony's failure to make payment or in a case of mistaken identity.
Prior to the trial getting under way, the State sought a ruling that evidence of the prior altercation between defendant and Anthony Hill would be admissible. Following a hearing on the question, the trial court ruled the evidence admissible but also determined that a limiting instruction was required.
The defense was one of alibi. Defendant presented evidence to the effect that he had accompanied his mother, his sisters, his girlfriend and several others to a restaurant in Philadelphia to celebrate his sister's birthday and did not arrive back in Camden until after the shooting had taken place. By its verdict, the jury rejected this testimony.
On appeal, defendant raises the following arguments:
HUNT'S TRIAL WAS WRONGFULLY TAINTED BY THE IMPROPER ADMISSION PURSUANT TO N.J.R.E. 404(B) OF PRIOR-WRONGS EVIDENCE
A. The Trial Court's Admission Of The Prior-Wrongs Evidence Pursuant To N.J.R.E. 404(b) Should Be Reviewed Under A De Novo Standard
B. Under N.J.R.E. 404(b) And New Jersey Case Law, There Are Clearly Defined Criteria That Must Be Met Before Evidence Of Prior-Wrongs Is Admitted
1. The Evidence Of The Altercation And The Drug Sales Is Not Relevant To A Material Issue
2. The Probative Value Of The Evidence Of The Altercation And The Drug Sales Is Outweighed By Its Apparent Prejudice
3. Even If Some Evidence Relating To The Altercation And The Drug Sales Would Have Been Admissible, The Trial Court Nonetheless Erred By Failing To Limit The Scope And Content Of The Evidence Admitted
HUNT'S CONVICTION FOR MURDER MUST BE REVERSED BECAUSE THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY THAT IT NEED NOT REACH A UNANIMOUS VERDICT AS TO WHICH SPECIFIC CRIME OF MURDER, IF ANY, HUNT COMMITTED (NOT RAISED BELOW)
HUNT'S CONVICTIONS FOR MURDER, POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, AND UNLAWFUL POSSESSION OF A HANDGUN SHOULD BE REVERSED BECAUSE HIS DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE, IN VIOLATION OF ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
A. This Issue Is Ripe For Decision On Direct Appeal
B. Defense Counsel Was Ineffective In Failing To Seek Severance
HUNT'S CONVICTIONS WERE TAINTED BY THE ADMISSION OF UNDULY PREJUDICIAL, HIGHLY INFLAMMATORY EVIDENCE POINT V HUNT'S SENTENCE WAS EXCESSIVE AND REQUIRES REMAND (NOT RAISED BELOW)
We take up first defendant's contention that the trial court erred when it held that evidence of defendant's earlier confrontation with Anthony Hill would be admissible at defendant's trial.
Evidence of a criminal defendant's prior crimes or wrongdoing is generally inadmissible, in light of the virtually self-evident proposition that such evidence is likely to impair the defendant's right to have a jury decide his guilt or innocence based solely on the relevant evidence presented at trial, free of the prejudice that such proof would likely inject into the proceeding. [State v. Mazowski, 337 N.J. Super. 275, 281-82 (App. Div. 2001).]
There are, however, instances in which such evidence may be received. At the time of defendant's trial, N.J.R.E. 404(b) dealt with the admissibility of evidence of other crimes or wrongs in the following manner:
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Whether such evidence is admissible is to be determined under the four-prong test set down by the Supreme Court in State v. Cofield, 127 N.J. 328 (1992).
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Cofield, supra, 127 N.J. at 338.]
In reaching its determination that this evidence would be admissible, the trial court noted that it clearly went to defendant's motive, thus satisfying the first prong. The trial court rejected the defense's argument that because the State did not have to prove motive to prove the crime of murder, this exception under N.J.R.E. 404(b) was inapplicable. The trial court correctly pointed out that proof of motive could constitute circumstantial evidence that defendant acted either purposely or knowingly.
The trial court also noted that the assault upon Anthony Hill occurred reasonably close in time to the shooting of Markquise Hill, thus satisfying the second prong. And, since defendant in his unchallenged statement given to the police at the time of his arrest admitted to the altercation with Anthony Hill, the third prong was also satisfied.
The trial court dealt with the fourth prong, that the probative value of the challenged evidence not be outweighed by its prejudicial effect, in the following manner:
Every bit of evidence in a case like this or any other law case is certainly prejudicial. Question is, is it unduly prejudicial?
Again, motive is an important element. It's relevant and I believe although it is prejudicial, doesn't substantially outweigh the probative value.
The trial court concluded:
I don't believe that it's unduly prejudicial. Doesn't substantially outweigh the probative value under 403. And, accordingly, it meets the fourth prong of the Cofield test and 403 test to be admissible.
Defendant contends that the trial court's analysis incorrectly relied upon N.J.R.E. 403 and that we should thus review its decision de novo rather than under the usual framework of abuse of discretion. State v. Darby, 174 N.J. 509, 518 (2002). Initially, we note that while the Supreme Court has stated that "the balancing test of Cofield's fourth prong . . . incorporates the traditional balancing test of Rule 403," State v. Hernandez, 170 N.J. 106, 127 (2001), it has also said that "[o]ther-crimes evidence . . . necessitates a more searching inquiry than that required by . . . the more lenient N.J.R.E. 403 standard." State v. Reddish, 181 N.J. 553, 608-09 (2004).
Defendant's argument does not substantively advance his case, however, because we are satisfied that even under a de novo review, the trial court's decision to admit this evidence should be upheld.
Defendant's challenge in the brief filed by his counsel on appeal is confined to the first and fourth prongs of the Cofield test. Accordingly, we similarly confine our extended discussion to those two elements.
The challenged evidence clearly went to defendant's motive. Contrary to defendant's argument, the fact that defendant asserted an alibi defense did not make the question of motive immaterial. State v. Clausell, 121 N.J. 298 (1990) (defendant charged with capital murder asserted alibi defense; although the trial court erred in not giving a limiting instruction, evidence of prior criminal activity was admissible to establish motive).
Defendant points to State v. Mazowski, supra, to support his argument that motive was never genuinely in issue in his trial. We disagree. In Mazowski, defendant was charged with burglary and theft; we reversed his convictions, finding that the trial court incorrectly permitted the State to use evidence of defendant's drug addiction to establish a motive for committing these crimes. 337 N.J. Super. at 278. The flaw lay in that the evidence of defendant's addiction did "not relate to the particular crime with which defendant [was] charged  or to any other particular crime." Id. at 282. We noted that evidence related to motive under N.J.R.E. 404(b) is generally "designed to show why a defendant engaged in a particular, specific criminal act." Id. at 283. The evidence of defendant's fight with Anthony Hill shortly before the killing of Markquise Hill fit within that narrow focus and satisfied the first prong of the Cofield test.
We have carefully considered defendant's assertion that the prejudice that flowed to him from the admission of this testimony outweighed the probative value of the evidence. We disagree. The evidence was not inflammatory in nature and nothing in the manner in which it was presented to the jury was designed to raise their emotions against defendant. And, in connection with this aspect of the argument, the trial court gave a carefully crafted limiting instruction to the jury, both at the time the evidence was received and in its final charge to the jury. Indeed, the trial court gave an appropriate limiting instruction to the jury on four separate occasions. The jury is presumed to have followed the court's instructions. State v. Manley, 54 N.J. 259, 270 (1969).
Defendant made no objection to the trial court's instructions to the jury on the crime of murder but now raises, as plain error, that the trial court erred when it instructed the jury that it need not reach a unanimous verdict as to whether defendant acted purposely or knowingly, and that it was sufficient that "all jurors must agree that the defendant either knowingly or purposely caused the death or serious bodily injury resulting in the death of Markquise Hill."
Defendant's argument in this regard has already been rejected by the Supreme Court, however. State v. Bey, 129 N.J. 557, 582 (1992) (noting "[w]e treat knowing murder and purposeful murder as equivalent expressions of moral culpability"). Defendant's attempt to distinguish the Court's analysis in Bey on the basis that Bey was a prosecution for capital murder is entirely unpersuasive; it would, indeed, be anomalous that a jury in a capital case could reach its decision on a broader basis than a jury deciding a non-capital case.
Following the shooting of Markquise Hill, the police were searching for defendant. Valerie Cooper knew Markquise and also knew that the police were looking for defendant. When she saw defendant in a store, she contacted the police. A few days later, defendant stopped his car in front of Ms. Cooper's house and said to her, "Bitch, I know you are the one who ratted and I'm going to kill" you. These actions led to the fourth and fifth counts of the indictment returned against defendant, who was ultimately acquitted of these charges.
Defendant asserts that he received the ineffective assistance of counsel because the attorney who represented him did not move to sever these counts for purposes of trial. Ordinarily, claims of ineffective assistance of counsel are dealt with through petitions for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992). We are satisfied, however, that defendant's claim is ripe for consideration on his direct appeal. We thus decline to relegate the issue to subsequent proceedings.
We are further satisfied that defendant's claim in this regard lacks substantive merit. Even if defendant's trial attorney had filed a motion to sever these counts of the indictment, such a motion would have been denied. The general test for determining whether offenses should be severed for purposes of trial is whether proof of one crime would be admissible as proof of the other. State v. Morton, 155 N.J. 383, 451 (1998). Proof of defendant's alleged threat to Ms. Cooper would have been admissible at his trial for murder as evidence of consciousness of guilt. State v. Williams, 190 N.J. 114, 128 (2007); State v. Rechtschaffer, 70 N.J. 395, 413 (1976) (holding that "[d]eclarations subsequent to the commission of the crime which indicate consciousness of guilt . . . are relevant and admissible."). Defendant is thus unable to satisfy the two-prong test for claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant's next argument is that his trial was unfair due to the trial court's admission into evidence of certain photographs taken during the autopsy of the victim. We have reviewed these photographs. They are neither gruesome nor unfairly prejudicial. The trial court's determination that they were admissible was a proper exercise of the discretion vested in it. Morton, supra, 155 N.J. at 455-56 (upholding the admission, in a capital case, of ten autopsy photographs of the victim).
Defendant's final argument is directed toward his sentence, specifically, the trial court's imposition of a consecutive term for the crime of unlawful possession of a weapon. The trial court failed to set forth any reasons at the time of sentencing to explain its determination that a consecutive sentence was warranted. We therefore remand this matter to the trial court for re-sentencing to address the question whether defendant should serve a concurrent or consecutive sentence for this crime. If the trial court determines that a consecutive sentence is warranted, it should place its reasons upon the record. State v. Miller, 108 N.J. 112, 122 (1987).
Finally, in connection with the remand proceedings, the trial court should amend the judgment of conviction to reflect that defendant's conviction for possession of a weapon for an unlawful purpose merged into his conviction for murder. State v. Diaz, 144 N.J. 628, 636 (1996).
Defendant has filed a supplemental pro se brief in which he raises the following arguments:
THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING THE OTHER BAD ACTS TESTIMONY BECAUSE THE STATE FAILED TO CLEARLY AND CONVINCINGLY ESTABLISH THE FOUR PRONG TEST FOR ADMISSIBILITY UNDER STATE V. COFIELD, IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND  THUS CONSTITUTED REVERSIBLE ERROR. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. Art. I, paras. 1, 9 and 10 (Supplemented to Counsel's Point I)
THE VERDICT WAS SHARPLY AGAINST THE WEIGHT OF CREDIBLE EVIDENCE, NECESSITATING REVERSAL AND RETRIAL
THE IMPOSITION OF A PRISON TERM ABOVE THE PRESUMPTIVE TERM VIOLATES THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW (Not Raised Below)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND ILLEGAL (Not Raised Below)
THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS VIOLATED THE COMMON LAW OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION
With respect to defendant's first pro se contention, we have already set forth our reasons for rejecting the claim that evidence of defendant's prior altercation with Anthony Hill should have been excluded under N.J.R.E. 404(b). There is no need to restate those principles, which conclusively dispose of defendant's first pro se contention.
In our judgment, there is no merit to defendant's second pro se argument. There was evidence presented during the trial that would support defendant's convictions as well as evidence that would have warranted his acquittal on all charges if this jury had accepted it as credible. The jury heard and weighed that evidence and reached its own determination as to its respective credibility and worth. We have no basis, as a reviewing court, to substitute our judgment for that of the jury. State v. Afanador, 134 N.J. 162, 178 (1993) (noting "Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination.").
Nor is there any merit to defendant's assertion that he is entitled to be re-sentenced under State v. Natale, 184 N.J. 458 (2005). In that case, the Supreme Court revised our sentencing procedures by abrogating the concept of a presumptive term. Id. at 487. Defendant, however, was sentenced after Natale was decided, and the sentencing court made specific reference to it. Further, there was no presumptive sentence for murder. State v. Abdullah, 184 N.J. 497, 507 (2005).
We also reject defendant's contentions that his sentence was manifestly excessive and that he is entitled to a new trial under the rubric of cumulative error. R. 2:11-3(e)(2).
Defendant's convictions are affirmed. The matter is remanded to the trial court for re-sentencing. We do not retain jurisdiction.