March 4, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUSTIN LACY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0502.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Parker and R. B. Coleman.
On March 3, 2005, an Essex County Grand Jury returned Indictment No. 05-03-0502, a ten-count indictment, which charged defendant Justin Lacy in the first four counts with the first degree attempted murder of Robert Thompson (count one), Dion Robinson (amended from Darlene Robinson) (count two), Frank Rokins, (count three) and Anthony Peaks (count four), N.J.S.A. 2C:5-1 and 2C:11-3. Counts five through eight charged second degree aggravated assault of Robert Thompson (count five), Dion Robinson (count six) Frank Rokins (count seven), and Anthony Peaks (count eight) N.J.S.A. 2C:12-1(b)(1). The final two counts charged third degree unlawful possession of a weapon (count nine), N.J.S.A. 2C:39-5b, and second degree possession of a weapon for an unlawful purpose (count ten), N.J.S.A. 2C:39-4(a).
The trial of the matter took place on October 4, 5, 6, 11, 12 and 17, 2005, and at its conclusion, the jury found defendant guilty of the attempted murder of Anthony Peaks (count 4), the second degree aggravated assault upon Anthony Peaks (count 8), the lesser-included third degree aggravated assault of Frank Rokins (count 7), and the two weapons charges (counts 9 and 10). He was acquitted on all other charges.
Before the scheduled sentencing date for those convictions, defendant entered into a plea agreement on a prior indictment, No. 05-05-1194. Pursuant to that November 14, 2005, plea agreement, defendant pled guilty to third degree possession of cocaine in Newark on July 19, 2004. In furtherance of the plea agreement, the State recommended dismissal of two additional counts charging, respectively, third degree possession of a controlled dangerous substance (CDS) with intent to distribute and third degree possession of CDS with intent to distribute in a school zone. Also, pursuant to the plea agreement, the State recommended a three-year sentence to be served by defendant concurrent to the sentence to be imposed in connection with Indictment No. 05-03-0502.
Based on the defendant's conviction for attempted murder, the court on December 22, 2005, imposed a fifteen-year prison term subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a fifty percent parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c), (d). Pursuant to NERA, defendant is also subject to five years of parole supervision upon release. The court merged the convictions for second degree aggravated assault and possession of a weapon for an unlawful purpose into the attempted murder conviction, and it imposed a four-year sentence for the conviction for third degree aggravated assault, to be served consecutive to the sentence for attempted murder. For the remaining conviction for unlawful possession of a weapon, the court imposed a concurrent four-year term.
The second judgment of conviction entered against defendant on December 22, 2005, was in accordance with a plea agreement that disposed of three counts of drug-related charges contained in Indictment No. 05-05-1194. The court imposed a three-year concurrent term in prison for the single count charging third degree possession of CDS, cocaine and dismissed the remaining counts.
On June 14, 2006, defendant appealed both judgments of convictions. Although the Notice of Appeal was received beyond the forty-five days allowed for the ordinary timely filing of a Notice of Appeal, it was accepted for filing according to criteria set forth in Section II of the Appellate Division Management Committee Minutes of March 16, 2000. The Notice of Appeal refers to both Indictment No. 05-03-0502 and Indictment No. 05-15-1194, however, we observe that the judgment of conviction on Indictment No. 05-15-1194 was the result of a plea agreement that appears to have been knowing and voluntary, and the three-year sentence in that matter was ordered to be served concurrently with and, therefore, subsumed within the fifteen-year term imposed in the judgment of conviction on Indictment No. 05-03-0502. In addition, none of the point headings of defendant's brief are directed at the plea entered with respect to Indictment No. 05-15-1194 or at the sentence imposed therein, and defendant has not identified any error with respect to that judgment of conviction. Accordingly, our analysis herein focuses on the judgment entered following the jury trial.
The charges in Indictment No. 05-03-0502 emanated from an incident that occurred at a pizzeria in East Orange on October 2, 2004. After an argument, defendant Justin Lacy and Anthony Peaks exited the pizzeria. Initially, they were shoving each other, however, defendant then took out a handgun and began firing at Peaks, striking him several times in the chest.
Frank Rokins and Robert Thompson, bail enforcement officers or bounty hunters for New Jersey Shields Fugitive Task Force, observed these events from a nearby twenty-four hour gas station. Rokins and Thompson were both armed and wearing bullet proof vests. They both displayed company badges around their neck. As defendant began running down the street, Rokins shouted, "fugitive task force, drop your weapon." Defendant responded by firing at the bounty hunters and continuing to flee. While Rokins was in pursuit, he and defendant exchanged fire and Rokins shot defendant in the leg, causing defendant to fall to the ground and drop his gun. Despite his injury, defendant got to his feet and continued running. The chase ended shortly thereafter when an unknown shooter fired on Rokins and Thompson, prompting them to take cover and lose the subject of their pursuit.
In the meantime, Thompson used his cell phone to call the police, and Newark Police Officers Sergio Peterira and Billy Correia, who were in the vicinity, arrived on the scene, to find "people just running all over the place," and a crowd of people hovering over a shooting victim, Peaks, who was lying on the pavement, bleeding. They immediately called for an ambulance.
Dion Robinson, who testified reluctantly at trial, indicated that she also was shot in the arm during the fracas. She was across the street from the pizzeria, and she saw Peaks and four or five others involved in an argument. She did not see anyone with a gun, but she heard gunshots and attempted to run. She saw two men she thought were cops with guns drawn, chasing a black male who also had a gun in his hand. Then she was struck in the arm by a stray bullet.
Robinson and Peaks were escorted to the University of Medicine and Dentistry of New Jersey (UMDNJ) for treatment, as Officer Correia spoke with the two bail enforcement officers, who were able to give Correia a description of the man they had been chasing. Correia then received a radio transmission regarding another gunshot victim. When he investigated the ambulance containing that additional victim, that person, defendant Justin Lacy, was found to have a gunshot wound to his leg. Officer Correia placed defendant under arrest.
On this appeal, defendant raises the following arguments:
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT BY ARGUING IN SUMMATION FROM FACTS NOT IN THE RECORD AND BY IMPLYING THAT OTHER WITNESSES WHO COULD INCULPATE DEFENDANT EXISTED BUT WERE UNAVAILABLE TO TESTIFY. (PARTIALLY RAISED BELOW).
BY REFUSING DEFENDANT'S REQUEST FOR A CLAWANS INSTRUCTION AND BY PRECLUDING DEFENSE COUNSEL FROM ARGUING TO THE JURY PURSUANT TO CLAWANS, THE TRIAL COURT DENIED DEFENDANT DUE PROCESS, FUNDAMENTAL FAIRNESS, AND A FAIR TRIAL.
THE FLIGHT CHARGE SHOULD NOT HAVE BEEN GIVEN. MOREOVER, THE CHARGE PROVIDED BY THE COURT WAS INADEQUATE BECAUSE IT FAILED TO INCLUDE FOR THE JURY'S CONSIDERATION AN ALTERNATIVE EXPLANATION FOR DEFENDANT'S DEPARTURE.
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, AS SET FORTH ABOVE DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW). POINT V: THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND INSUFFICIENT REASONS WERE GIVEN FOR IMPOSING CONSECUTIVE TERMS.
A. The Sentence Is Manifestly Excessive.
B. Consecutive Terms Are Not Justified.
We find no merit in any of those arguments.
Defendant first contends that his convictions should be overturned because the prosecutor claimed that on the night of the shooting, defendant possessed and fired more than one gun and because the prosecutor told the jurors there were uncooperative eyewitnesses other than Dion Robinson. The State denies that this constituted prosecutorial misconduct, and we agree with the State.
Our Supreme Court has stressed that "'prosecutors should confine their summations to a review of, and an argument on, the evidence, and not indulge in improper expressions of personal or official opinion as to the guilt of the defendant, or [otherwise engage] in collateral improprieties of any type, lest they imperil otherwise sound convictions.'" State v. Frost, 158 N.J. 76, 88 (1999) (quoting State v. Thornton, 38 N.J. 380, 400, cert. denied, sub nom., Thornton v. New Jersey, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed. 2d 1039 (1963); see also State v. Spano, 64 N.J. 566, 569 (1974) (noting that sometimes severe action is necessary to curb prosecutorial misconduct); State v. D'Ippolito, 19 N.J. 540, 549 (1955) (stressing that "[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done.").
Despite these obvious limitations on arguments in summation, "prosecutorial misconduct will not serve as the basis for reversal unless it was so egregious as to work a deprivation of a defendant's right to a fair trial." State v. Feaster, 156 N.J. 1, 59 (1998); State v. Koedatich, 112 N.J. 225, 323 (1988), cert. denied, sub nom., Koedatich v. New Jersey, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989); State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, sub nom., Ramseur v. Beyor, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). The Court has recognized that "'[c]riminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in summation . . . .'" State v. Timmendequas, 161 N.J. 515, 587 (1999) (quoting State v. DiPaglia, 64 N.J. 288, 305 (1979) (Clifford, J., dissenting)). "From time immemorial rhetoric, figures of speech, and descriptive phrases have been accepted as fitting for presenting facts and arguments to support a theory of guilt or innocence. So long as counsel does not depart from the facts and reasonable inference, he is within his rights." State v. Cioffe, 128 N.J.L. 342, 354 (Sup. Ct. 1942) aff'd, 130 N.J.L. 160 (E. & A. 1943).
In this instance, defendant claims the prosecutor made several assertions during his summation that were not based on facts presented or on reasonable inferences from those facts. For example, defendant notes the State argued he had at least two weapons and the prosecutor stated "Justin Lacy had a gun, and it turned out several guns, and was ready to fire them."
While there was no direct testimony that defendant carried more than one weapon, no counts of the indictment depended upon his possession of more than one handgun. Moreover, there was ballistic evidence from which the jury could rationally infer that he did possess more than one handgun. Peaks, who knew defendant, testified he was prepared to fight defendant when defendant pulled a gun and shot him. The shell casings found at the pizzeria were .38 caliber. There were no .32 caliber casings found at that site. Yet, the shell casings found in the street where defendant allegedly fired at Rokins and Thompson were .32 caliber, and the abandoned gun, retrieved from the area where the suspect fell, was a .32 caliber handgun. Neither of the bounty hunters had a .32 or .38 caliber weapon.
In defense counsel's own summation, when referring to certain trial exhibits, she utilized the presence of the different shell casings to imply a police conspiracy, suggesting that because defendant only had one gun, someone other than defendant had to discharge their weapon or leave shell casings at the scene. She emphasized "[t]hese are all .32s, .32 caliber. Those are the ones that were found in the middle of the street, remember? These were all .38s down here at the scene of the shooting." It was, of course, valid for her to point out the discrepancies, but it was equally valid for the prosecutor to suggest that the presence of the two different caliber shell casings was an indication that defendant had at least two different caliber guns. The jury was, of course, free to reject the suggestion.
Defendant also stresses that the State told the jury there were a number of uncooperative witnesses other than Dion Robinson, "creat[ing] the possibility that the State had inculpatory evidence not shown to the jury" or "that the reason the witnesses would not testify was due to a fear of reprisal from defendant." What the prosecutor said was the following:
Here's a witness [Dion Robinson], like hundreds of other people that were out there[,] twenty people, whatever the number was, didn't want to get involved.
Use your common sense, ladies and gentlemen. Lots of people out there. Is it normal that people just don't want to get involved, they don't want to be bothered, they don't want to come here for whatever reason-.
Defense counsel immediately objected to the allusion to non-testifying parties, and the judge corrected the reference. The prosecutor also agreed that he should restrict his comments to the witness Dion Robinson.
We are satisfied that the prosecutor's comments were thus appropriately confined to the testifying witness. The proofs do disclose that there are a lot of people in the vicinity. As the officers observed, there were "people just running all over the place." There was no prejudicial suggestion that the State had other inculpatory evidence that was not presented to the jury. Plainly, the jurors scrutinized the quality of the State's proofs that were presented, and they did not accept it all. Thus, they concluded the State had failed to prove beyond a reasonable doubt that defendant had attempted to murder anyone other than Anthony Peaks.
As defendant's next point, he claims that the court wrongfully denied his request for a Clawans instruction. First, he did not raise that objection during trial; so, our review of this alleged error is under a plain error standard. See R. 2:10-2. In State v. Clawans, the court found that, [g]enerally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure to those facts would be unfavorable to him. But such an inference cannot arise except upon certain conditions and the inference is always open to destruction by explanation of circumstances which make some other hypothesis a more natural one than the party's fear of exposure . . . .
For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved.
[38 N.J. 162, 170-71 (1962) (citations omitted).]
We have recognized that courts must exercise caution in allowing a Clawans adverse inference to be drawn. State v. Velasquez, 391 N.J. Super. 291, 306 (App. Div. 2007). In Velasquez, we elaborated:
Caution is appropriate because of the variety of reasons, unrelated to fear of the content of the testimony, that may more reasonably explain a litigant's decision to refrain from producing a witness. A court should not start with the assumption that an absent witness's testimony must be favorable to either one side or the other and an adverse inference must arise against either. In many cases the only rationale inference is that the witness's testimony would not have been helpful, which is something quite different than unfavorable or adverse. [Id. at 307-08 (citations omitted).]
Importantly, the inference should not be invoked when the witness in question is available to both parties. Id. at 313.
The witness as to whom defendant urges an adverse inference should have been charged is Terrell Manning. Terrell Manning is the brother of the victim, Anthony Peaks. He was available to both parties. He was with Peaks at the time of the shooting. During trial, Manning was incarcerated on unrelated charges. The State indicated it attempted to gain his cooperation as a State's witness, but Manning refused. At that point, the State moved for a Clawans charge that was denied; appropriately so, as we have recognized, "it is reasonable to infer that the defendant's decision to do without a witness can be explained by the defendant's reliance on the presumption of innocence." Id. at 309.
The following day, the court denied defendant's request for a Clawans charge. Significantly, Manning's testimony likely would have been duplicative to that of Peaks. Therefore, the need for that testimony and for the instruction regarding adverse inferences was slight, perhaps non-existent. See State v. Irving, 114 N.J. 427, 441 (1989) (holding the use of the inference improper where testimony would only introduce cumulative or unimportant testimony). Under the circumstances, the trial court was well within its discretion to deny this request, and such denial does not amount to plain error.
Defendant next argues that the court should not have instructed the jury as to flight and that the charge itself was inadequate. The second part of this argument was not raised below, thus we must search the record for plain error and we find none.
We . . . have recognized flight as being a type of post-crime conduct that can demonstrate consciousness of guilt. State v. Long, 119 N.J. 439, 499, 575 A.2d 435 (1990) ("Flight of an accused is admissible as evidence of consciousness of guilt . . . ."); see generally 2 Wigmore on Evidence § 276 (Chadbourn rev. 1979) ("It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself . . . ."). Thus, evidence of flight occurring after the commission of an offense has been held probative of guilt and admissible. See State v. Mann, 132 N.J. 410, 418-19, 625 A.2d 1102 (1993) (explaining that evidence of flight after charged offense is admissible when probative of guilt). [State v. Williams, 190 N.J. 114, 125-26 (2007).]
We are convinced that the State used defendant's post crime conduct as evidence of defendant's understanding of his own guilt. This was just one piece of evidence considered in a trial rife with damaging testimony against defendant. The language dictated by the court regarding flight closely followed the model jury charge and was not inadequate. It certainly did not have the capacity to deprive defendant of a fair trial.
Defendant contends there were errors committed at trial that independently may have been harmless, but which deprived him of a fair trial when viewed cumulatively. See State v. Allen, 308 N.J. Super. 421, 431 (App. Div. 1998) (finding where questions of credibility, inconsistent statements and improper jury charges exist, their cumulative effect may warrant a reversal). Where "the legal errors . . . in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). However, a defendant is entitled to a fair trial, not a perfect one. State v. Boiardo, 111 N.J. Super. 219, 233 (App. Div. 1970), certif. denied, 401 U.S. 948, 91 S.Ct. 931, 28 L.Ed. 2d 231 (1971).
The court is required to consider "'in the context of the entire case, whether the error was clearly capable of affecting the verdict or the sentence.'" State v. Bey, 129 N.J. 557, 624-25 (1992) (quoting Bey I, 112 N.J. 45, 94-95 (1988)). In reviewing each of the alleged errors, we have found the claims of error are unsubstantiated. Nor does it appear, viewing them cumulatively, that they were capable of unfairly affecting the verdict or the sentence.
Defendant argues that his sentence was manifestly excessive and that the court improperly imposed consecutive sentences. Appellate review of a criminal sentence must follow a three-step process. The court must:
(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case make the sentence clearly unreasonable so as to shock the judicial conscience.
[State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984) (emphasis omitted)).]
When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990); see State v. Gardner, 113 N.J. 510, 516 (1989). "A sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." Gardner, supra, 113, N.J. at 516; see State v. Velasquez, 54 N.J. 493, 495 (1969) (it is an exceptional case where an exercise of discretion will lead to reversal.). The record does not reveal any improper exercise of discretion by the sentencing court.
The court detailed its findings as to the applicable aggravating and mitigating factors. It commented, "there are little in the way of significant aggravating factors here that affect the imposition of sentence. It is for that reason that it is not my intention to impose the maximum term as available to me under law." Furthermore, the court did not "aggravate" the sentence because it did not find the existence of the aggravating factor that we often find in that defendant did not have a prior criminal history. Therefore, defendant was sentenced in the middle range for a first degree attempted murder charge. See N.J.S.A. 2C:43-6(1) (for a first degree crime, a sentence between ten and twenty years shall be fixed by the court). That was an appropriate sentence, not at all shocking to the judicial conscience.
Finally, the court validly imposed a consecutive term for the third degree aggravated assault charge. Both State v. Abdullah, 184 N.J. 497 (2005), and State v. Yarbough, 100 N.J. 627 (1985), aimed to create guidelines for such sentencing situations. N.J.S.A. 2C:44-5(a) dictates that "[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." The sentencing court has discretion in rendering these decisions. See Abdullah, supra, 184 N.J. at 512. Yarbough, supra, set forth the criteria for the court to evaluate in this process. 100 N.J. at 643-44. "There is no presumption in favor of concurrent sentences." Abdullah, supra, 184 N.J. at 513-14; see N.J.S.A. 2C:44-5(a).
The crimes defendant committed involved several locations and involved separate victims. Defendant shot a firearm several times at one person at close range and in the direction of others while attempting to evade capture. The imposition of a consecutive term for these separate offenses was within the sentencing court's discretion. We decline to disturb any portion of the court's sentencing scheme.
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