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State v. McKinnon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 24, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KHALIF MCKINNON,*FN1 DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-0420.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 9, 2008

Before Judges Axelrad, Payne and Messano.

Defendant Khalif McKinnon appeals from the judgment of conviction and sentence that followed his jury trial on charges of conspiracy to commit murder in the second degree, N.J.S.A. 2C:5-2 and 2C:11-3; first-degree purposeful and knowing murder of Cheryl Green, N.J.S.A. 2C:11-3a(1) and (2); first-degree attempted murder of Carlos Matias, N.J.S.A. 2C:5-1 and 2C:11-3; first-degree attempted murder of Martin Perez, N.J.S.A. 2C:5-1 and 2C:11-3; first-degree attempted murder of Jose Sanchez, N.J.S.A. 2C:5-1 and 2C:11-3; first-degree attempted murder of Juan Cruz, N.J.S.A. 2C:5-1 and 2C:11-3; third-degree illegal possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun with the intent to use it unlawfully, N.J.S.A. 2C:39-4(a).

The jury acquitted defendant of conspiracy, murder, and all four charges of attempted murder, but it convicted him of the lesser-included offense of aggravated manslaughter as to Green, N.J.S.A. 2C:11-4(a)(1), three second-degree aggravated assaults, N.J.S.A. 2C:12-1(b)(1), as lesser-included offenses of the attempted murder charges as to Matias, Sanchez and Cruz, and the weapons offenses. Defendant was acquitted of all charges relating to Perez.

On January 31, 2006, defendant's motion for a new trial was denied and a total aggregate sentence of thirty-four years imprisonment was imposed, 85% of which was to be served without parole eligibility in accordance with the No Early Release Act (NERA).*fn2 This appeal ensued.

Defendant has raised the following issues for our consideration:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INCLUSION OF LESSER-INCLUDED OFFENSES FOR WHICH THERE WAS NO RATIONAL BASIS. (Not Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S PREJUDICIAL AND ERRONEOUS INSTRUCTION ON THE LESSER-INCLUDED OFFENSES OF ATTEMPTED MURDER.

A. THE DEFENDANT HAD NO NOTICE AND NO OPPORTUNITY TO BE HEARD ON ALLEGATIONS THAT THE DEFENDANT COMMITTED AGGRAVATED ASSAULT CRIMES.

B. AGGRAVATED ASSAULT IS NOT A LESSER-INCLUDED OFFENSE OF ATTEMPTED MURDER.

C. IF N.J.S.A. 2C:12-1(b)(1), N.J.S.A. 2C: 12-1(b)(2) and N.J.S.A. 2C: 12-1(b)(3) ARE LESSER-INCLUDED OFFENSES, THEN THE COURT ERRED BY NOT INCLUDING AN INSTRUCTION ON N.J.S.A. 2C:12-1(b)(4). (Partially Raised Below)

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE AFTER THE JURY ASKED FOR A RE-INSTRUCTION ON THE LAW OF AGGRAVATED MANSLAUGHTER AND AGGRAVATED ASSAULT. (Not Raised Below)

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CROSS-RACIAL IDENTIFICATION EVEN THOUGH THERE WERE CROSS-RACIAL IDENTIFICATIONS. (Not Raised Below)

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF IDENTIFICATION EVIDENCE.

A. THE TRIAL COURT ERRED BY REFUSING TO HOLD A WADE*fn3 HEARING NOTWITHSTANDING SOME EVIDENCE OF SUGGESTIBILITY.

B. BASED ON THE IDENTIFICATION EVIDENCE PRODUCED AT TRIAL, THE IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED.

POINT VI

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA*fn4 AND NEW JERSEY COMMON LAW RIGHTS.

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S CONFUSING AND PREJUDICIAL INSTRUCTION ON THE LAW OF TRANSFERRED INTENT.

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S REFUSAL TO ALLOW THE DEFENSE TO PRESENT OTHER-CRIME EVIDENCE SHOWING THAT THE CRIME SCENE INVESTIGATOR WAS UNDER INDICTMENT FOR OFFICIAL MISCONDUCT.

POINT IX

THE DEFENDANT WAS UNFAIRLY PREJUDICED BY THE IMPROPER ADMISSION OF PHOTOGRAPHS.

POINT X

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Partially Raised Below)

POINT XI

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

B. THE TRIAL COURT MADE FINDINGS OF FACT INCONSISTENT WITH JURY FINDINGS TO IMPOSE AN EXCESSIVE SENTENCE.

C. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.

D. A FORTY-ONE YEAR SENTENCE FOR BEING RECKLESS IS CRUEL AND UNUSUAL AND SHOCKS THE CONSCIENCE OF THE COURT.

We have considered these contentions in light of the trial record and applicable legal standards. We affirm.

I.

On April 13, 2004, between 9:00 and 9:30 p.m., Martin Perez, his cousin Carlos Matias, Jose Sanchez, Juan Cruz, and Cheryl Green were standing near a Honda Civic owned by Perez parked on James Street in Newark. A dark-colored Acura Legend, variously described by the witnesses as black, green, or gray, with tinted windows, passed the group slowly, made a right turn, circled the block, and came back up James Street at a high rate of speed, stopping in front of the group. The car windows were lowered, a door opened, and at least one individual, later identified as defendant, began shooting.

Perez, at first, "[d]ove" under the Civic with the others, but when he saw "some black boots" step out of the back seat of the Acura, he "took off and ran." When Sanchez saw the car window open and a gun come out, he too "hid under the car" by its front wheels and "play[ed] dead." He did not see the others and as "the shots g[o]t closer," he "kept moving[,] trying to go under the car but [he] couldn't," and was shot in the right leg. He saw Green and Matias lying next to him in "[b]ad shape." Matias was moaning in pain and he knew Green was dead.

Matias had his back to the Acura talking to Sanchez, when he heard shots and felt "something hit [him] in the face." His "first reaction was to hit the floor" and "pretend[] like [he] was laying down." He heard "boom, boom, boom," then the shots stopped. Matias heard Green plead, "Please, no, not me," and then "heard again boom, boom, boom."

Cruz lay flat on his stomach near the car, and Green lay next to him, her face near his feet. Cruz saw blood and nudged Green's leg, asking if she was all right, but there was no reaction. Then Cruz saw a pair of brown Timberland boots and he "broke," running "zig zag[]" down James Street and into a parking lot, while two people chased after him shooting. Eventually, Cruz saw "alot (sic) of people running towards the other way," and he followed them back to the scene, where he saw people screaming and Green "on the floor."

Meanwhile, Perez had also run "zig zag . . . between cars," towards a parking lot until he "passed out" in shock. When he awoke, his body was "numb," and people were removing his clothes, checking to see if he was shot, but he was not. He returned to his car and saw Green on the ground and Matias "laying there like he was dead."

The Newark police department received a report of the shootings at 9:44 p.m. and responded to the scene. During their subsequent investigation, they discovered a stolen Acura that had been partially destroyed by fire, and it was identified as the car in which the shooter, or shooters, had arrived at the scene. Numerous shell casings were recovered, six from a .380 caliber and one from a 9 mm. handgun. In addition, six vials of cocaine were found at the scene.

Sanchez was treated and released from the hospital after a bullet fragment was removed from his leg by hospital staff. He provided police with a statement that night. Matias, though conscious, was unable to give any statement to the police that night because of his wounds. Green suffered gunshot wounds to her left thigh and to the left side of her head, the latter proving to be fatal. A bullet was recovered from her skull at autopsy and was subsequently matched by the State's ballistic expert as having come from the same gun that fired the bullet recovered from Sanchez.

The police took statements from Cruz and Perez the next day and Perez selected defendant's photo from a photographic array he was shown by the police. On April 20, 2004, defendant was arrested by Newark police detective Rasheen Peppers, who advised defendant of his Miranda rights and told him that he was under arrest. Defendant made no statement at the time. Detective Michael Palermo read defendant his Miranda rights again and placed him in a room by himself. Approximately five minutes later, another homicide detective, Joseph Hadley appeared and wanted to retrieve files from the interview room. Palermo told Hadley that defendant was in the room, and that Hadley might know him from the neighborhood where Hadley's mother lived. Hadley went into the room and spoke to defendant for about "two minutes," after which defendant agreed to provide Palermo with a written statement.

Defendant said his purpose in going to James Street was to "to talk to [the Puerto Rican dude] so no one would get hurt about the issue," which defendant described as "words going back and forth and . . . him thinking that someone stole something from him," which "was suppose[d] to be money or drugs or something." Defendant claimed the problem arose "[a]bout a week and a half or two weeks before this." Defendant described what happened the night of the shooting:

We pulled up on James Street to look for the Puerto Rican dude, but I did not see him. I thought he wasn't out there so we went back around to go down Orange Street and go up James Street again to see if I see him again. Then I seen him and we must have caught eye contact because he knew it was me because he started to lift his shirt as if he was reaching for a gun. Then I fired two shots. He was ducking. I don't know what he was ducking behind. But then as he was ducking, I was still shooting. Then he ran and I shot on[c]e more. Then I realized I could not hit him, so I got back inside the car. Then we pulled off and we headed straight to the townhouses on Broadway.

Defendant claimed he was dropped off at his grandmother's house after the shooting. He thought the gun he used was a 9 mm. but he was not sure. Defendant provided detailed physical descriptions of his two accomplices, but claimed he knew one of them only as "Rocky" and that he did not know the name of the driver. Defendant denied that either of them had fired shots on the evening in question.

Defendant identified photos of Sanchez, who he knew as "Bolo," as the person with whom he had the "issue," and Matias, who he knew as "Bolo's brother or cousin." Defendant had known both of them for "roughly six or seven years." He told police that he "didn't even know anyone got shot that night" and only learned of that "a couple nights later." He claimed to feel remorse over the shooting of Green. Defendant declined to have his statement recorded by video or audio tape.

At trial, Perez was the only victim who identified defendant. Perez said he "couldn't really see" who was firing the shots, but he recognized defendant, whom he had known for "[a]bout two years." Perez claimed that defendant was the person in the front passenger seat of the Acura, a fact that was contrary to defendant's statement to the police.

On cross-examination, Perez acknowledged telling the police that he believed he was the target of the shooting because he and defendant had a dispute two years earlier. Perez later clarified that defendant's dispute "wasn't with me, it was with the person I was with." Perez admitted that he had been arrested on September 21, 2004, for stealing a car, and subsequently received a probationary sentence. He acknowledged that in March 2005, he was arrested for selling drugs, but once again received a probationary sentence. Perez denied, however, that the prosecutor made any promises to help him in return for his testimony against defendant.

George Martinez also identified defendant in court as the shooter. Martinez testified that he was smoking crack cocaine in the bathroom of his mother's house on James Street when he heard noise that he believed "was fire crackers or something like that." When he looked out the open bathroom window, he saw "a guy shooting at [Martinez's] nephews and Cheryl Green," who were all "on the floor." After the shooting, Martinez provided a statement to the police and picked defendant's photo from an array, though he later tried to recant his statement out of "fear for [his] life." Martinez testified that he had no doubt that defendant was the man he saw with the gun. At the time of trial, Martinez was serving a prison sentence for drug possession, the latest in a string of arrests and convictions.

At trial, Cruz said that he "saw some dudes" whose faces he did not recognize, and although he gave a general description to the police, he was unable to identify defendant. Cruz also had a conviction for drug possession. Sanchez was unable to describe the assailant, or assailants, at all.

Defendant did not testify, nor did he call any witnesses on his behalf. The judge conducted a charge conference before summations. He concluded that he would charge both aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), despite the State's objection to the latter. The State requested that the judge charge aggravated assault, "serious bodily injury in the second degree . . . as a lesser-included of" the attempted murder counts. The judge, however, indicated that "the only lesser-included offense for attempted murder is attempted passion prov[ocation], and that's not in this case." Defense counsel agreed with this assessment.

Summations took place and immediately afterward the jury was discharged for the day. The judge then denied the prosecutor's request to charge "transferred intent," noting it was adequately covered within the model criminal jury charge for murder, and there was no objection or further discussion from either attorney on this point. The judge also indicated that he intended to review his charge overnight, and in the event counsel had any further additions or requests, they should make them in the morning before the instructions commenced.

The next day's proceedings began with further argument regarding the charge outside the presence of the jury. Despite his earlier ruling, and without any extensive explanation on the record, the judge indicated that he intended to charge aggravated assault in the second-degree, N.J.S.A. 2C:12-1(b)(1), "for the people who [were] actually injured," Matias and Sanchez, and "not charge anything as a lesser[-]included on the two that were not injured." The State agreed with this suggestion; defense counsel continued to argue that aggravated assault was not a lesser-included offense of attempted murder.

The judge then charged the jury, during which he told the jurors that they should consider the "lesser[-]included offense of aggravated assault" as "to all four counts of attempted murder." He then read model criminal jury charge N.J.S.A. 2C: 12-1(b)(4), i.e., knowingly pointing a firearm at another under circumstances evidencing extreme indifference to the value of human life. At the conclusion of the charge, the judge asked counsel if there were any exceptions. The assistant prosecutor noted that while he had no objection to the charge, he also believed the jury should be charged on the aggravated assaults contained in N.J.S.A. 2C:12-1(b)(1), (2) and (6) as lesser-included offenses of attempted murder. Defense counsel did not object further, noting her "one objection" was to the conspiracy charge the judge had given, and the fact that it did not specify that the jury could only consider that crime in the context of murder and not either manslaughter charge. The judge immediately told the jury that their consideration of the conspiracy charge was limited to the single crime of conspiracy to commit murder.

The jury was dismissed for lunch without commencing deliberations. However, when they returned, the judge advised them that they were being excused for the evening and that deliberations would commence in the morning. Outside their presence, the judge placed on the record the reason for the delay.

[The prosecutor's office] asked that the case be adjourned until tomorrow morning so that they . . . would have an opportunity to review the charge because they're concerned that there maybe some[] errors in the charges here, some omissions or commissions in the charge . . . .

So with no objection from the defense, I granted [the assistant prosecutor's] request and the case will continue tomorrow at [nine] o'clock. I've asked that any corrections, additions, deletions with regard to the charge all be given to me prior to nine o'clock . . . .

Defense counsel then noted, "I did defer to the [c]court for the adjournment, but I have not conceded any issues concerning omissions [or] commissions . . . [a]nd I'll just need to . . . respond to whatever we get to[morrow]."

The next day, following some off-the-record discussion, the judge announced that after reviewing the aggravated assault statute, and presumably, the suggested language furnished by the State, he was "convinced that [N.J.S.A. 2C:12-1(b)(1), (b)(2) and (b)(3)] appl[ied] to Mattias and Sanchez," the two individuals actually shot. He also concluded that "[b(1) and (2)] apply to the other two." Defense counsel noted her continued objection to any lesser-included offense being charged on the attempted murder counts.

She also objected to the State's new proposed "transferred intent" charge, noting the judge's prior ruling and conclusion that the model jury charge adequately covered the issue. We gather from the somewhat obscure record that the State wished the judge to charge the specific statutory language contained in N.J.S.A. 2C:2-3(d) only. Defense counsel alternatively argued that under those circumstances, the judge should also charge subsections (b) and (c) of the statute, which is what the judge did.

The jury reconvened and the judge began his supplemental charge by telling the jurors that his prior instructions regarding aggravated assault were "incorrect." He then instructed the jury as to aggravated assault, N.J.S.A. 2C:12-1(b)(1) and (2), as to all four victims, and aggravated assault, N.J.S.A. 2C:12-1(b)(3), as to Matias and Sanchez. The judge reviewed the verdict sheet with the jury, there were no further objections to the substance of the charge or the verdict sheet, and the jurors commenced their deliberations.

Within a short period of time, the jury requested a read back of some of Sanchez's and Cruz's testimony. Shortly thereafter, they requested to be re-charged on the law applicable to the three homicide charges and thereafter they sought re-instruction on the three aggravated assault charges. After some further deliberation, they again sought reinstruction on aggravated assault, N.J.S.A. 2C:12-1(b)(1). Two more jury notes followed in short succession, apparently requesting further read back of testimony, and the judge decided to adjourn and answer those requests the next day.

However, as the court reconvened the next morning, the jury sent out another note requesting the opportunity to deliberate further before any read back. Shortly thereafter, the jury again asked for read back, continued their deliberations, and ultimately reached the verdicts set forth above.

II.

We first consider the points defendant raises regarding the jury charge, some of which were raised below, and some of which were not, thus requiring us to determine in those instances whether the alleged impropriety amounted to plain error. State v. Afanador, 151 N.J. 41, 54 (1997). "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assesed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the affect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.

Since defendant challenges the decision of the trial judge to charge lesser-included or lesser-related offenses to murder and attempted murder, we review the general principles that should inform such a decision. When a court instructs the jury as to an uncharged lesser-included offense, as defined by N.J.S.A. 2C:1-8(d), no constitutional due process violation occurs. State v. Brent, 137 N.J. 107, 115-16 (1994). "[W]hether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." State v. Thomas, 187 N.J. 119, 131 (2006). Because of constitutional concerns, however, "we restrict prosecution requests for included offense jury charges solely to those offenses that are lesser-included offenses within the meaning of N.J.S.A. 2C:1-8(d)." Ibid.

When a defendant requests an instruction on a lesser offense than that charged in the indictment, a different analysis applies. Essentially, the examination is less whether the requested lesser charge "is strictly 'included' in the greater offense," and more "whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Brent, supra, 137 N.J. at 117. The trial court has an "independent obligation" to charge a lesser-included offense if supported by the evidence, even in the absence of a request by counsel. State v. Jenkins, 178 N.J. 347, 361 (2004). However, even in circumstances where the lesser charge is strictly "included," it will not be submitted to the jury if it is "so unanticipated by either party as to cause complete surprise, or so inconsistent with the defense as to undermine the fairness of the proceedings . . . ." State v. Garron, 177 N.J. 147, 181 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004).

A request to charge a lesser-related, as opposed to a lesser-included charge, alters the analytic landscape. Lesser-related offenses are those "that share a common factual ground, but not a commonality in statutory elements, with the crimes charged in the indictment." Thomas, supra, 187 N.J. at 132. "[A]bsent a waiver by the defendant, our constitutional guarantee of prosecution only by grand jury indictment precludes any prosecutorial request for a jury instruction in respect of a related offense." Id. at 132-33.

A.

Defendant first argues that it was plain error for the judge to have charged the jury as to aggravated manslaughter because "there was no rational basis in the evidence to support" a conviction for that crime. He contends that the State's theory of the case urged the jury to find that defendant had deliberately planned to kill Sanchez because of a prior argument. Defendant likens the facts to those presented in State v. Mendez, 252 N.J. Super. 155, 160-62 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992), and State v. Sanchez, 224 N.J. Super. 231, 242-43 (App. Div.), certif. denied, 111 N.J. 653 (1988), two cases in which we concluded that the failure to charge aggravated or reckless manslaughter was not reversible error.

We disagree with this contention primarily because the jury was free to accept or reject any of the State's evidence, including defendant's confession to the police. The sole question is whether there was sufficient evidence in the record which, if believed by the jury, could prove aggravated manslaughter beyond a reasonable doubt.

Here, defense counsel lodged no objection to the aggravated manslaughter charge, and, during the charge conference, in urging the judge to charge reckless manslaughter, she contended that "recklessness is in the case" if the jury believed defendant's confession. We assume defense counsel meant that if the jury accepted defendant's intimation that Sanchez had a weapon, was reaching for it when he spotted defendant, and that defendant shot first in essentially "imperfect self-defense," the jury could find defendant lacked the requisite mental state for murder--purposely or knowingly--and instead find that he acted recklessly. State v. Bowens, 108 N.J. 622, 627-30 (1987). Thus, defendant's own statement placed facts in evidence that distinguish this case from either Mendez or Sanchez because there was no evidence in those cases that the defendants believed, reasonably or unreasonably, that the victims were armed.

When a defendant requests a lesser-included charge, it is reversible error for a court to refuse to give the charge if there is a rational basis in the record to do so. State v. Choice, 98 N.J. 295, 298 (1985). Therefore, the request made by defendant to charge reckless manslaughter was properly granted by the judge.

Aggravated manslaughter requires the same mental state as manslaughter, and occurs when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). "To prove aggravated manslaughter, the State must establish that 'the defendant was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life.'" State v. Ruiz, ___ N.J. Super. ___, ___ (App. Div. 2008) (slip op. at 12) (quoting State v. Cruz, 163 N.J. 403, 417 (2000)). "Simply stated, aggravated manslaughter requires conduct involving the probability of death," whereas reckless manslaughter, generally a lesser-included offense, can be founded upon the mere possibility of death. Ibid. The question of defendant's state of mind regarding the two is best left to the fact finder. State v. Gaines, 377 N.J. Super. 612, 623 (App. Div.), certif. denied, 185 N.J. 264 (2005).

Since the judge charged murder, aggravated manslaughter, and reckless manslaughter the jury's attention was properly focused on all the gradations of homicide relevant to the case. State v. Coyle, 119 N.J. 194, 228 (1990); State v. Tierney, 356 N.J. Super. 468, 484 (App. Div.), certif. denied, 176 N.J. 72 (2003); State v. Vasquez, 265 N.J. Super. 528, 551 (App. Div.), certif. denied, 134 N.J. 480 (1993). We find no basis for reversal on this ground.

B.

Defendant next argues that the charges regarding aggravated assault were erroneous 1) because he was not provided with adequate notice and an opportunity to be heard on those charges; 2) because aggravated assault is not a lesser-included offense of attempted murder; and, 3) alternatively, because if the judge was going to charge aggravated assault at all, he should have instructed the jury as to aggravated assault as defined by N.J.S.A. 2C:12-1b(4), something he did originally but then told the jury was "incorrect."

With relevance to the issues presented, a person is guilty of aggravated assault if he

(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; or

(2) Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3) Recklessly causes bodily injury to another with a deadly weapon;

(4) Knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in section 2C:39-1f., at or in the direction of another, whether or not the actor believes it to be loaded[.] [N.J.S.A. 2C:12-1b.]

Contrary to defendant's assertion, aggravated assault under subsection (b)(1) is a lesser-included offense of attempted murder. State v. Russo, 243 N.J. Super. 383, 411 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991). Defendant's claim, therefore, that N.J.S.A. 2C:12-1(b)(1) should not have been charged is without merit.

We agree with defendant that the judge should have clearly and definitively indicated what, if any, aggravated assault charges he intended to charge before summations. But, we cannot conclude that the unusual procedure employed here resulted in harmful error. While defense counsel continued to assert her objection to any aggravated assault charge whatsoever, she did not object specifically to the timing of the court's decision, i.e., after summations.

Defense counsel's objection--that none of the aggravated assault charges was a lesser-included offense of attempted murder--was erroneous as a matter of law, as we have noted above. Having lodged that incorrect objection, defense counsel thereafter never objected to any of the specific aggravated assault charges the judge ultimately provided to the jury. This was understandable because defendant essentially argued that he was not at the scene of the shooting, that the victims were not credible, and that his confession was unbelievable because it was inconsistent with the other evidence including the victims' own testimony. Therefore, despite the judge's flip-flop on the issue, the charge as to N.J.S.A. 2C:12-1(b)(1) was not "so inconsistent with the defense as to undermine the fairness of the proceedings . . . ." Garron, supra, 177 N.J. at 181.

Defendant next argues that if N.J.S.A. 2C:12-1(b)(1), (2) and (3), are lesser-included offenses of attempted murder, then so is section b(4), and it should have been charged. First, our comments above should not be read to mean that we accept defendant's premise that N.J.S.A. 2C:12-1(b)(2) and (3) are indeed lesser-included offenses of either attempted murder or N.J.S.A. 2C:12-1b(1). They are not.

Since both these aggravated assaults require the State to prove the use of a deadly weapon, and attempted murder and b(1) aggravated assault do not, they may be lesser-related offenses but neither are lesser-included offenses of attempted murder or b(1) aggravated assault. Since defendant did not request a charge as to any of these lesser offenses, our inquiry is not whether the facts adduced at trial could support a conviction under N.J.S.A. 2C:12-1(b)(2) and (3). See State v. Villar, 150 N.J. 503, 516-517 (1997) (approving, upon defendant's request and given the facts of the case, the charging of these two aggravated assaults as lesser offenses of b(1) aggravated assault even though the additional element of a deadly weapon is required). Rather, it was error for the court to have given a charge as to N.J.S.A. 2C:12-1b(2) and (3) in the first instance because they are lesser-related, but not lesser-included, charges of N.J.S.A. 2C:12-1(b)(1) and were objected to by defendant.

However, we are hard-pressed to see how defendant was prejudiced by the erroneous inclusion of these lesser charges given the fact that N.J.S.A. 2C:12-1b(1), the greater charge, was appropriately before the jury and resulted in their guilty verdicts as to three of the four victims. We find no basis to reverse on this ground either.

C.

We consider the balance of defendant's challenges to the jury instructions as lacking sufficient merit to warrant significant discussion in this opinion. R. 2:11-3(e)(2). We add only these comments.

Defendant argues the judge committed plain error in the manner that he recharged the jury, pursuant to its request, on the law regarding the homicide charges and the aggravated assault charges. He contends the charges did not "reflect the facts" of the case and, thus, did not assist a confused jury.

We recognize that the trial judge should "relate the law to the facts of a case . . . ." State v. Savage, 172 N.J. 374, 389 (2002). However, "not every failure to do so is fatal." State v. Bilek, 308 N.J. Super. 1, 10 (App. Div. 1998). Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised here was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000). We find no basis for reversal on this ground.

Defendant next argues the judge committed plain error by not providing the jury with a "cross-racial identification" instruction in accordance with State v. Cromedy, 158 N.J. 112 (1999). This argument has no merit.

Defendant is African-American and although the State contends that, notwithstanding their Hispanic surnames, "the record does not disclose the racial or ethnic backgrounds of the[] witnesses," we believe the record sufficiently allows for the conclusion that they were of a different race than defendant. But that conclusion, alone, does not end the inquiry.

In Cromedy, the Supreme Court recognized the mere fact that a crime was allegedly committed by a person of a different race than the victim does not provide an automatic basis for the charge. Id. at 132. Instead, the Court held "[a] cross-racial instruction should be given only when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Ibid.

We think it obvious that this case did not require the charge at all. First, while defendant argued he was not at the scene of the shooting, his confession to the police placed him there as an active participant. Second, the statement lent corroboration to Perez's identification of defendant who was someone the victim knew for years. Thus, the facts were unlike those presented in Cromedy where the victim's cross-racial identification was uncorroborated and was the sole evidence of identity in the case. Lastly, the jury was provided with the general instruction on identification testimony required by State v. Green, 86 N.J. 281, 292-93 (1981). We have no doubt that plain error was not committed.

Defendant next argues that the judge's instructions regarding "transferred intent" were erroneous, failed to explain the concept in the context of "accomplice liability," and improperly injected "criminal negligence" into the case. We disagree.

The judge essentially read the statutory language to the jury. In relevant part, N.J.S.A. 2C:2-3 provides,

a. Conduct is the cause of a result when: (1) It is an antecedent but for which the result in question would not have occurred;

b. When the offense requires that the defendant purposely or knowingly cause a particular result, the actual result must be within the design or contemplation, as the case may be, of the actor, or, if not, the actual result must involve the same kind of injury or harm as that designed or contemplated and not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.

c. When the offense requires that the defendant recklessly or criminally negligently cause a particular result, the actual result must be within the risk of which the actor is aware or, in the case of criminal negligence, of which he should be aware, or, if not, the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.

d. A defendant shall not be relieved of responsibility for causing a result if the only difference between what actually occurred and what was designed, contemplated or risked is that a different person or property was injured or affected or that a less serious or less extensive injury or harm occurred.

From the record, we discern that the State requested that the judge instruct the jury solely as to subsection (d); defendant requested that the judge also instruct the jury as to subsections (b) and (c), which he did.

Once again we agree that the timing of the judge's decision to give the instruction was problematic, coming after the judge denied the State's request initially, after summations, and after the initial jury charge. Nonetheless, we have no doubt that the charge was appropriate, since an issue in the case was whether defendant's intention to shoot Sanchez, as alleged by the State, could be transferred to defendant's ultimate victim, Green, thus making him guilty of her murder. State v. Worlock, 117 N.J. 596, 615-17 (1990).

The judge acceded to defendant's wish to charge subsections (b) and (c), which only assisted placing the charge in the proper context with respect to each crime's different requisite mental state. The judge's slip of the tongue, the inclusion of the words "criminally negligently" when he read subsection (c), was fleeting and, in the context of the entire charge, inconsequential. Lastly, the jury was properly charged with respect to accomplice liability earlier and told that to the extent defendant was an accomplice, it needed to determine whether he shared the same, or different intent, than his principal. The judge properly instructed the jury as to the concept of accomplice liability with respect to their consideration of lesser-included offenses. Defendant did not complain of the charge then, and does not complain of the charge before us. The judge's "transferred intent" charge addressed causation and did not misstate the law regarding that issue in the context of accomplice liability.

III.

We next turn our consideration to a number of challenges defendant makes to pre-trial and evidential rulings by the judge.

A.

Defendant argues that the judge erred in admitting into evidence the statement he gave to police, contending that the State failed to prove that he knowingly and voluntarily waived his rights because 1) it cannot prove that defendant was advised prior to giving his statement that a judge had already issued an arrest warrant charging him with Green's murder; and 2) because the State failed to produce as a witness "the officer who influenced the defendant to give a statement." We think the argument mischaracterizes the actual evidence in the case and therefore is unavailing.

At the Miranda hearing, Peppers testified that he arrested defendant in the early morning hours of April 20, 2004, and read defendant his rights from a card. At 10:15 a.m., Palermo claimed that he met with defendant and again advised him of his rights from "a preamble form." Defendant placed his initials next to the five sequentially numbered rights on the form. Palermo testified:

After I Mirandized [defendant] I told him that he was under arrest for [the] murder of Cheryl Green which occurred at Baxter Terrace . . . .

At that point I walked out of the office and asked [Detective] Hadley if he wanted to talk. He said he would talk to him. [] Hadley walked into the room, came out five minutes later, if that . . . . He says, "Okay, he wants to talk to you."

Defendant signed the Miranda preamble form and the waiver form. The statement began at 11:50 a.m., and ended at 1:30 p.m. Palermo took an addendum to the statement at 4:20 p.m. during which time, he asked defendant:

Q: K[h]alif did I advised [sic] you before we began this Statement that you were under arrest for the Murder of Cheryl Green?

A: Yes.

Q: After you were advised of your rights per Miranda and before I started interviewing you did I tell you that you were locked up for a warrant issued by a Judge for the murder of Cheryl Green?

A: Yes.

Q: After being advised about the warrant were you still willing to talk to me?

A: Yes.

Since the judge found this testimony to be credible, defendant's reliance on State v. A.G.D., 178 N.J. 56 (2003), is entirely misplaced. In that case, the Supreme Court held that the State could not carry its burden of establishing an "informed waiver of rights, regardless of other factors that might support [the] confession's admission" because defendant was not advised that an arrest complaint had already been issued before he agreed to speak to the police. Id. at 68. Here, Palermo's testimony was unequivocal, and it was corroborated by defendant's own answer in which he acknowledged that Palermo told him he was under arrest for Green's murder before he waived his rights.

At the hearing, defendant also argued that the State failed to meet its burden of proof because "we have absolutely no idea what [] Hadley said to [defendant]." He renews this argument before us. However, the judge found "no evidence in the case that [] Hadley did anything, that he coerced in any way, induced or used police trickery, physical or psychological pressure or anything that would in fact cause the statement of [defendant] to be less than voluntary." We likewise find no basis to conclude otherwise. Defendant had already received his Miranda rights twice, was with Hadley for a brief period of time, and there was no evidence that his will was overborne during that time so as to make his decision to waive his rights and speak to the police an involuntary one.

B.

Defendant argues that the judge erred in denying his pretrial request for a hearing pursuant to Wade, supra, because he had presented "some" evidence that the procedures employed during Perez's and Martinez's out-of-court identifications were suggestive. Alternatively, he argues that the trial testimony demonstrates that the identification procedures employed violated his due process rights under Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d 401 (1972). We find no merit to either argument.

In State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985), we held that under the New Jersey Constitution a defendant's right to a full Wade hearing requires at least "a threshold showing of some evidence of impermissible suggestiveness in all pre-charge police photographic array identification procedures." Accord State v. Cherry, 289 N.J. Super. 503, 517 (1995); State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b. 135 N.J. 3 (1994). The decision whether to hold a full hearing is left to the trial court's discretion based upon the totality of the circumstances. Ortiz, supra, 203 N.J. Super. at 522.

Defendant contends he made such a "threshold showing" by pointing to Perez's claim that the shooter had been in prison for the prior two years, when in fact he was not, and by Perez's statement that there was one shooter, not two, as others claimed. Defendant also argued that the backgrounds of the photos used in the arrays were all the same, with the exception of defendant's which was a different color. Lastly, defendant argued that Martinez's identification, because it was temporarily recanted, suggested "there was something amiss during the course of his identification procedure."

The judge answered all these arguments, noting first that Perez's claim that defendant had been imprisoned for two years immediately prior to the shooting was relevant to Perez's credibility, but it was not evidence that the identification process was suggestive. He reasoned similarly with respect to Martinez's temporary recantation. The judge viewed the photographs in the arrays that had been shown to each man, observing that defendant's photograph was "somewhat of a greenish color," but that "all six photographs have different backgrounds." The court found nothing in the photographs that indicated "that perhaps the defendant was being impermissibly suggested or singled out in any way." We find no abuse of the trial court's discretion in refusing to conduct a Wade hearing.

Defendant argues that admission of the identification evidence from Perez and Martinez violated his due process rights because it was untrustworthy and unreliable. We find this argument to be without sufficient merit to warrant any further comment in this opinion. R. 2:11-3(e)(2).

C.

Defendant argues that the trial court erred when it refused to allow him to present evidence that one of the crime scene investigators was under indictment for official misconduct because that evidence was relevant to the jury's evaluation of the reliability of the investigation. We are not so persuaded.

Before trial, defense counsel informed the court that she intended to cross-examine Palermo regarding one of the crime scene investigators, Detective Cosgrove, who was under indictment for official misconduct based upon an allegation that he tampered with evidence. According to defense counsel, Cosgrove had mapped and photographed the scene, collected evidence, and done the distance measurements and she argued that the "other crimes" evidence was relevant to the jury's "evaluation of the quality of his work."

Cosgrove never testified at trial, though there was testimony that he had collected evidence at the scene. Defense counsel argued that the fact that Cosgrove was under indictment for evidence tampering was admissible because he "had responsibility for things that not everyone had control over." The State argued that it was not introducing any evidence that Cosgrove was solely responsible for obtaining and securing, and the judge denied defendant's request.

Defendant renews the argument before us. Assuming arguendo that Cosgrove's indictment was evidence admissible under N.J.R.E. 404(b), he never testified. The witnesses who testified did so based upon their own actions and conduct, not those of Cosgrove. To allow them to be cross-examined about Cosgrove's indictment would have been highly prejudicial to the State, and it would have lacked any true probative value. State v. Franklin, 384 N.J. Super. 306, 312 (App. Div. 2006).

D.

Defendant argues that the trial court erred when it admitted photographs of the crime scene, specifically bloody photographs of Green's body. Defense counsel objected that the photos were inflammatory, prejudicial, and "not evidential" because the medical examiner would testify as to how Green was killed. The judge overruled the objection.

The decision to admit or exclude crime scene photographs rests with the sound discretion of the trial judge. State v. Johnson, 120 N.J. 263, 297 (1990). Any photograph of a murder victim will "cause some emotional stirring," but such photographs are admissible unless "their probative value is so significantly outweighed by their inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence." Ibid. (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). We find no basis to disturb the judge's decision in this case.

Lastly, in light of all of our prior discussion, we find no merit to defendant's claim of cumulative error by the judge.

IV.

Defendant argues that his sentence was excessive because the trial court "improperly balanced the aggravating and mitigating factors," "erred by imposing consecutive terms," "made findings of fact inconsistent with the jury" verdicts, and imposed a sentence that "shocks the conscience." We find the arguments unpersuasive.

The judge sentenced defendant to twenty years imprisonment on the aggravated manslaughter count, two separate seven-year terms on two of the aggravated assaults, consecutive to each other and consecutive to the manslaughter count, and ran all other sentences concurrently with those. At sentencing, the judge observed that defendant committed these crimes after he had pled guilty to a previous indictable offense, failed to appear for sentencing, and a bench warrant had issued for his arrest. By the age of twenty-one, defendant had been arrested five times and had thirty-one petitions filed against him as a juvenile.

The judge found that aggravating factor three applied, the risk that defendant would commit another crime, because he had "a voluminous record" for a young man and "ha[d] shown a propensity not to learn from his past mistakes," having violated probation in the past. The judge also found aggravating factor six, the extent and seriousness of defendant's prior record, and aggravating factor nine, the need for deterring defendant and others from violating the law. The judge rejected defendant's argument that mitigating factor twelve applied--willingness to cooperate with law enforcement authorities--simply because defendant gave a statement to the police. The judge concluded that the aggravating factors "overwhelmingly" preponderated. Defendant's argument that the judge failed to properly weigh the aggravating and mitigating factors is without merit.

Likewise, his claim that judge "disregarded the jury verdict" and "unconstitutionally made [his] own findings of fact" because the aggregate sentence exceeds that for more serious crimes, such as murder, is also without any merit. Defendant ignores the fact that the sentence reflects an aggregate term for crimes committed against four separate victims.

Defendant also argues that the court's decision to impose consecutive sentences was erroneous "[s]ince all the crimes arose out of the same reckless conduct." But, the judge concluded that defendant should be sentenced to consecutive terms because his crimes involved multiple victims. In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), the Court set forth the factors to be considered when deciding whether to impose consecutive or concurrent sentences. The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)). In this case, the trial court properly recognized that the crimes for which defendant was sentenced involved separate, numerous victims and deserved consecutive terms. The sentences imposed do not shock the judicial conscience, and we find no basis to otherwise disturb them.

Affirmed.


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