February 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TRAVIS L. TOWNSEND, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-06-1148.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges Graves and Sabatino.
Defendant Travis L. Townsend, Jr. appeals from a final judgment of conviction and sentence. A jury found him guilty of second-degree aggravated assault by attempting to cause serious bodily injury to Andre Banton, N.J.S.A. 2C:12-1(b)(1) (count two); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (count three); second-degree unlawful possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count five). The jury acquitted defendant of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one). In a successive trial before the same jury,*fn1 defendant was convicted of second-degree possession of a handgun by a previously convicted person, N.J.S.A. 2C:39-7(b)(1) (count six).
At sentencing on October 7, 2005, the court merged counts two, three, and four into count two and sentenced defendant on count two (second-degree aggravated assault) to a term of eight years, subject to an eighty-five percent parole ineligibility term under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count six, defendant was sentenced to five years subject to NERA to run concurrently with the sentence imposed on count two.
On appeal, defendant presents the following arguments:
THE INCLUSION OF INAPPLICABLE MENTAL ELEMENTS IN THE ATTEMPTED AGGRAVATED ASSAULT JURY INSTRUCTIONS WAS PLAIN ERROR. (NOT RAISED BELOW).
THE STATE AND THE TRIAL COURT VIOLATED DEFENDANT'S RIGHTS TO A SPEEDY TRIAL AND DUE PROCESS AND THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS THE INDICTMENT (U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10).
DEFENDANT'S MOTIONS FOR MISTRIAL SHOULD HAVE BEEN GRANTED AS HIS RIGHTS TO AN IMPARTIAL JURY AND A FAIR TRIAL WERE PREJUDICED BY COURT OFFICERS' MISCONDUCT AND TRIAL COUNSEL'S OTHER OBLIGATIONS INTERFERING WITH HIS DEFENSE (U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947) ART. I, PAR. 10). (NOT RAISED BELOW).
DEFENSE COUNSEL'S NUMEROUS FAILURES TO PROTECT THE DEFENDANT'S RIGHT TO A FAIR TRIAL DEPRIVED HIM OF EFFECTIVE ASSISTANCE OF COUNSEL. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947) ART. I, PAR. 10). (NOT RAISED BELOW).
THE MATTER MUST BE REMANDED FOR A COMPLETE AND PROPER SENTENCING PROCEEDING. (NOT RAISED BELOW).
THE IMPOSITION OF AN EIGHT-YEAR SENTENCE ON THE SECOND-DEGREE AGGRAVATED ASSAULT CHARGE IS FUNDAMENTALLY UNJUST AND SHOULD SHOCK THE JUDICIAL CONSCIENCE. (NOT RAISED BELOW).
After reviewing the record and the applicable law, we conclude defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we will summarize the key facts and comment briefly on Points I, II, IV, and VI.
On June 20, 2005, the trial court determined the eighteen-month delay between defendant's arrest on December 21, 2003, and his trial, which began on June 23, 2005, did not violate defendant's constitutional right to a speedy trial. In reaching its decision, the court applied the four-part test set forth in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed. 2d 101, 117-18 (1972). The Barker test was adopted by the New Jersey Supreme Court in State v. Szima, 70 N.J. 196, 200-01, cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed. 2d 180 (1976). Our review of the record confirms the trial court properly applied the Barker standards to the facts of the case and, in our view, the court did not err in denying defendant's motion to dismiss the indictment on speedy trial grounds.
Defendant's trial took place on June 23, 27, 28, 29, 30, and July 5, 6, and 7, 2005. Defendant elected not to testify, and the only witness called on his behalf was Detective Colin Maher, who had testified as a State's witness earlier in the trial.*fn2 The jury was charged on July 7, 2005, and it rendered its verdict that same day.
The facts adduced at trial are relatively straightforward. Deidre Banton-Pulley (Dee-Dee), cousin of the victim, Andre Banton (Andre), moved into an apartment located at 145 West Street in Englewood in October 2003. During the early morning hours of December 21, 2003, Dee-Dee, her son Gregory, Gregory's friend, Tyrone, and Andre, were talking and playing cards.
Kendra Haynes (Kendra), Dee-Dee's sister, had gone to the movies with her friend, Jackie Haskins (Jackie), and it was about 2:00 a.m. when they drove back to Dee-Dee's apartment complex. As Jackie exited the car, he heard someone say "[c]ome here, [p]ussy." Jackie testified that when he turned around, defendant "was in front of me," and they "got into an altercation or an argument, a little bit." Kendra, who was unaware that Jackie and defendant were engaged in a serious confrontation, exited the car and entered Dee-Dee's apartment. Jackie testified he and defendant previously lived in the same residential complex for two or three years, and he also recognized defendant from Club One West, a bar located in Englewood. Further, Jackie stated a month prior to December 21, 2003, he "exchanged words" with defendant after defendant passed him at Club One West without acknowledging him.
Jackie and defendant stood face to face "verbally exchanging back and forth," during which time defendant called Jackie a coward and questioned Jackie as to whether he had anything to do with defendant being "jumped one time at [Club] One West." This exchange lasted for "a good 10 minutes" until Andre and Kendra emerged from Dee-Dee's apartment to separate the men. Kendra testified she walked up to Jackie and pulled his arm to get him inside the house, and at that time she recognized defendant as an individual with whom she attended school for "two or three years." Andre, who knew neither Jackie nor defendant prior to that night, testified that since Dee-Dee "had just moved [into the apartment complex], I wanted to go outside to stop them from making so much noise. I didn't want my cousin to be associated as being, you know, an unruly neighbor or anything like that so I was trying to appeal to both of them, you know, to cut the argument out." Andre spoke with the men for about fifteen minutes, during which time Gregory and Dee-Dee exited the apartment and joined the confrontation.
Gregory recognized defendant as an individual he had gone to school with, and Dee-Dee recognized defendant as a man with whom she "used to shoot pool."
As Andre and defendant exchanged words, Dee-Dee attempted to intervene, and defendant pushed her out of the way. Andre responded by pushing defendant in order "[t]o put . . . distance between us" and to get Dee-Dee out of harms way. Immediately, defendant pulled out a handgun, "chambered" a bullet, pointed it at Andre, and stated, "Now what?" Andre began backing away quickly; skipping in a zigzagged pattern in order to put distance between himself and defendant and to avoid a bullet if defendant fired the gun. According to Dee-Dee, "everybody else took off" after defendant pulled the gun. Defendant meanwhile walked towards Andre while aiming the gun at him and holding it at "about the level of [Andre's] forehead with [his] wrist bent downwards."
When Andre reached the sidewalk surrounding the parking lot defendant fired the gun at him, "and at that point is when [Andre] took [his] opportunity to full out run." Andre ran down a walkway between two buildings and defendant "walked over that way and then shot" at him again, but "then [Andre] lost sight of [defendant]." At the end of the walkway, Andre was confronted with a fence, and not wanting to be trapped, he turned and walked back in the direction he came from, towards Dee-Dee's apartment. While walking back to the apartment, Andre saw Gregory, and both individuals witnessed a small car "fly by," traveling down West Street.
After witnessing defendant take the second shot at Andre, Dee-Dee proceeded back into her apartment to check on the children and call 911. At that time Dee-Dee noticed bullet holes in her screen door and dining room wall.
Patrolman Joseph Doyle was on duty in the early hours of December 21, 2003, when he received "a call from police dispatch stating for all units in the area to respond to the area of Demarest and West Street on reports of gunshots being fired." The dispatcher also described the suspect's vehicle as "a green-colored Plymouth Neon." At the intersection of James Street and West Demarest Avenue, Patrolman Doyle "saw a suspect vehicle pass [him] going west," being operated by a black male who "fit the exact description as what the police dispatcher put over the radio." However, because Patrolman Doyle "was the primary unit responding to the actual scene of West Street" he did not initially pursue the vehicle, since his first priority was to arrive at the crime scene as soon as possible. Upon arriving at West Street and West Demarest Avenue, Patrolman Doyle observed "overhead emergency lights" already at the scene, therefore he turned his vehicle around to chase the suspect vehicle.
Meanwhile, the police dispatcher had also given Patrolman Daniel Wenz a description of the suspect and the suspect's vehicle. A "minute or two" after receiving the dispatch, Patrolman Wenz "saw a Neon with a male inside matching the description that was given over the radio." After making a u-turn to follow the suspect vehicle, Patrolman Wenz activated his overhead emergency lights and conducted a stop. Defendant was patted down and then "placed in custody." Patrolman Doyle arrived on the scene shortly thereafter.
Back at Dee-Dee's apartment, Officer Thornton White had arrived on the scene and began conducting interviews and searching for physical evidence. A spent shell casing was found by Officer White in the parking lot. Additionally, approximately ten minutes after the incident occurred, Officer White heard a suspect was apprehended, and he took Andre to the scene of the roadside arrest for a "showup identification." As he pulled up, Officer White activated his spotlight and directed it towards defendant, who was standing outside a patrol car in handcuffs. Within ten to fifteen seconds Andre positively identified defendant as the individual who had shot at him. See State v. Romero, 191 N.J. 59, 78 (2007) ("'[A] prompt showing of a detained suspect at the scene of arrest has a very valid function: to prevent the mistaken arrest of innocent persons.'") (quoting United States v. Bautista, 23 F.3d 726, 730 (2d Cir.), cert. denied, 513 U.S. 862, 115 S.Ct. 174, 130 L.Ed. 2d 110 (1994)) (alteration in original); see also State v. Wilkerson, 60 N.J. 452, 461 (1972) ("On or near-the-scene identifications have generally been supported upon three grounds. They are likely to be accurate, taking place, as they do, before memory has faded. They facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.").
Defendant was arrested and his car, which was a rental, was towed to police headquarters. Subsequent searches at police headquarters by Detective Timothy Torrell revealed a bullet in one of defendant's jacket pockets and a shell casing in a McDonald's cup in the center cup holder of the car defendant was operating.
While walking her dogs at approximately 8:30 a.m. on December 21, 2003, Dee-Dee's neighbor, who resides at 53 Cross Street in Englewood, discovered a handgun, later determined to be a Lorcin .380 auto caliber pistol, on the sidewalk in front of her house. She testified the gun was not there when she walked her dogs at approximately 11:00 p.m. on the night of December 20, 2003. Moreover, testing by Lieutenant Charles Mason of the Bureau of Criminal Investigation of the shell casings and bullets found at the scene of the crime as well as from defendant's rental car revealed a positive match to the gun discovered by Dee-Dee's neighbor.
During his summation, the prosecutor argued the proof of guilt was "overwhelming" because defendant was positively identified as the shooter by multiple eye witnesses who knew him prior to the shooting on December 21, 2003:
He's the shooter, and I'll tell you why, because four people said he was the shooter.
This case is not about science. If I had no cops, if I had no gun, if I had no bullets, if I had nothing, I could still come before you and argue this case on the eye witness testimony alone. On Andre Banton's testimony alone, I could come before you and try this case. I don't need the other facts. They're the icing on the cake. The gravy, so-to-speak. I don't need them. I have them, but I don't need them. You could decide this case on the eye witness testimony alone.
As to Point I, defendant alleges error in the trial court's jury instructions regarding the applicable mental elements of aggravated assault. Because the issue was not raised below, we will not intervene absent error "prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). Here, the trial court recited, nearly verbatim, the model jury charges for aggravated assault, which included the applicable mental elements for attempt. We are therefore satisfied the elements of the offense were adequately explained, and defendant's contentions are without merit.
In Point IV, defendant alleges ineffective assistance of trial counsel in the following respects: (1) counsel's attention was "repeatedly diverted by other courts demanding her appearance and attention to other matters"; (2) counsel failed to visit the scene of the crime;*fn3 (3) counsel did not make a formal motion for a speedy trial; (4) counsel did not produce Andre Banton during a Wade hearing; (5) counsel failed to object to the jury instructions; (6) "counsel was unaware of how Defendant's physical appearance on the date of the incident in question differed from the way he looked at the time of trial and how he was described by some of the eyewitnesses"; and (7) counsel failed to object to the presentence report.
A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984). New Jersey has adopted the standards set out in Strickland. State v. Fritz, 105 N.J. 42, 58 (1987).
To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland/Fritz test. First, he must demonstrate his counselor's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
"The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95 (internal citation and quotation omitted).]
At sentencing on October 7, 2005, defendant advised the court that his attorney was "ineffective" because "she didn't fill out the [m]otions that I asked to be filled out." In rejecting this claim, the court advised defendant as follows: "I understand those are your feelings, but it was my observation that [your attorney] very, very vigorously defended you. Cross-examination was very searching and extensive, and the jury very well could have found you guilty of attempted murder, there was sufficient evidence to do so." We agree and, based on our review of the record, we find no merit in any of defendant's ineffective assistance of counsel claims.
Defendant's claim that his eight-year sentence for the second-degree aggravated assault conviction "is fundamentally unjust" (Point VI), is equally without merit. Defendant's sentence does not represent a miscarriage of justice or shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Jarbath, 114 N.J. 394, 401 (1989); State v. Ghertler, 114 N.J. 383, 387-88, 393-94 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).