June 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DESROY L. TURNER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-07-0653.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2008
Before Judges Lisa, Lihotz and Simonelli.
Defendant, Desroy L. Turner, was indicted for first degree murder, contrary to N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (count one); second degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count three); third degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (count five); and second degree certain persons not to possess weapons, contrary to N.J.S.A. 2C:39:7 (count seven). A jury convicted defendant on counts three and five, and acquitted on count seven. On count one, the jury convicted defendant of the lesser charge of aggravated manslaughter. The trial judge merged count three into count one, and sentenced defendant to a twenty-one year term of imprisonment with an eighty-five percent period of parole ineligibility. On count five, the judge sentenced defendant to a consecutive five-year term of imprisonment with a one-year period of parole ineligibility. The judge also imposed the appropriate assessments, penalties and fees.
On appeal, defendant raises the following arguments:
THE DEFENDANT'S REQUEST THAT THE TRIAL JUDGE NOT INSTRUCT THE JURY AS TO LESSER INCLUDED OFFENSES SHOULD HAVE BEEN GRANTED.
THE DEFENDANT'S MOTIONS FOR MISTRIAL SHOULD HAVE BEEN GRANTED.
A. Motion For Mistrial Due To Reference To Booking Photo from LAPD Regarding Defendant Should Have Been Granted.
B. Motion For Mistrial Due To Hearing NonEvidential Statement of Witness During Readback Should Have Been Granted.
THE JURY VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE.
THE REQUEST FOR THE COURT TO CHARGE THE JURY THAT CHRISTOPHER HALL REFUSED TO TESTIFY OR WAS A SUSPECT IN THE DEATH OF MARIO MINTO SHOULD HAVE BEEN GRANTED.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We reject these arguments and affirm.
Defendant was the owner of Little Rock Entertainment, which provided music for a party on March 13, 2003, at a nightclub in Paterson. There were between 100 and 150 people at the club that night, and alcohol was served. Mario Minto (Minto) was there with his friends, Romeo Prince (Prince), Nicardo Gooden (Gooden), Christopher Hall (Hall) and Tejan Osbourne (Osbourne).
Sometime between 1:00 and 2:00 a.m., two of the partygoers, Dalton Garvey (Garvey) and Debra Smith (Smith), began physically fighting on the dance floor. Garvey accused Smith of trying to dance with a friend of Minto. The fight was short-lived, and either Minto or Courtney Johnson (Johnson), or both of them, separated Garvey and Smith and escorted Garvey out of the club.
According to Minto's girlfriend, Takeeya Planno (Planno), Minto told Johnson to leave Garvey alone because Garvey and Smith were his friends and he would deal with them. Johnson ignored Minto and pushed Garvey out of the club. An argument then ensued between Minto and Johnson. Johnson grabbed Minto, who was five feet six inches tall and weighed 179 pounds, and Minto pushed Johnson's chest. Johnson then pushed back, stating, "Little boy, chill. Little boy you know, you lucky you a little boy[.]" Johnson then turned and left the club. Apparently angered by Johnson's insult, Minto walked over to Hall and Planno and attempted to retrieve a gun from Hall's pants, saying, "It ain't over, it ain't over." Hall told Minto to "just chill" and that Hall would get Johnson. Planno saw Hall leave the club and believed he was going after Johnson.
According to Prince, three or four minutes after escorting Garvey out of the club, Johnson returned with a handgun in the pocket of his brown sweatshirt. Johnson was standing about two feet behind Prince and Minto and said about Garvey, "that guy [is] gay, he needs to get shot." Minto responded, "why he need to get shot[?]" Johnson did not respond and walked over to defendant.
Someone then shot Minto while he was standing in front of a jukebox. Planno was standing near Minto when it happened, Prince was right beside Minto, and Hall, who had returned, was in front of Minto. The bullet hit Minto in the back. According to Prince, Minto turned toward defendant, grabbed defendant and asked why defendant had shot him. According to Minto's cousin, Sareeta Howard (Howard), she heard shots and saw Minto "begging for a gun."*fn1 Defendant shot Minto in the chest in an attempt to get Minto off of him.*fn2 Minto spun and fell to the ground. Johnson, who was standing close by, pointed a gun at Minto's head, but did not shoot. Johnson and defendant left the club after the shooting. Howard also said that Hall left the club because he had "seen the person that did it and he went to go chase after them and kill the person or shoot after the person." Howard heard shots from the parking lot, looked outside, and saw Hall running up the street firing his gun. On cross-examination, Howard testified that she initially believed that Hall shot Minto.
According to Obsourne, the shooter was a "short guy" with "nappy hair that stuck out of the bottom of his cap," and who wore a "red button on shirt . . . pull over rain jacket, a black undershirt, blue jeans, and white sneakers." According to Gooden, Johnson was wearing a brown sweat suit and Timberland boots, and his hair was in dreadlocks. After the shooting, Gooden saw Johnson and another man run out of the club.
Defendant, Johnson and Hall were all indicted in connection with the shooting.*fn3 Johnson claimed that he left the club before the shooting. Defendant claimed Hall or someone else shot Minto.
Defendant first contends that the trial judge erred in denying his motion for a mistrial on the grounds that Detective Lieutenant Donald Giaquinto (Giaquinto) of the Paterson Police Department prejudiced him by referring to a request that Giaquinto sent to the Los Angeles Police Department (LAPD) for a photograph of defendant.
"A mistrial is an extraordinary remedy" that should be employed "[o]nly when there has been an obvious failure of justice[.]" State v. Mance, 300 N.J. Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)). When "the court has an appropriate alternative course of action[,]" it should deny a request for a mistrial. Id. at 281 (citing Loyal, supra, 164 N.J. at 436-37).
"A motion for a mistrial is addressed to the sound discretion of the court; and the denial of the motion is reviewable only for an abuse of discretion." State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S.Ct. 675, 98 L.Ed. 1097 (1954). "Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right." Ibid. With these standards in mind, we address defendant's contentions.
Giaquinto answered "yes" when the prosecutor asked if he "had a difficult time ascertaining the [defendant's] identity[,]" and testified that he had sent a request to the LAPD for a photograph of defendant. Defendant requested a mistrial, arguing the testimony was extremely prejudicial because the jury could infer from it that Giaquinto received a booking photo of defendant, and that defendant had a prior arrest in Los Angeles. Defendant rejected the court's offer to give the jury the instruction on photos typically given in the final jury charge, and again requested a mistrial. The trial judge denied the request, concluding that Giaquinto did not testify that defendant had an arrest record in Los Angeles, and that "photos in the possession of police do come up in trials often and it's dealt with by giving the jury charge." Giaquinto then testified that he was able to obtain a photograph of defendant. He identified the photo of defendant, which was a booking photo he received from the LAPD. The judge removed the booking numbers from the photo, and later gave the photo instruction during the final jury charge.
We discern no abuse of discretion. Giaquinto's testimony did not prejudice defendant. Giaquinto did not testify that he received a photo in response to his request to the LAPD, nothing in his testimony confirmed that defendant had a criminal record, and the charge given by the judge sufficiently addressed the issue.
Defendant also contends that the trial judge erred in denying his motion for a mistrial on the grounds that he was prejudiced as a result of the jury hearing a statement made by Gooden outside of the jury's presence. This contention lacks merit.
Outside of the jury's presence, the prosecutor asked Gooden what Minto said to Johnson when they were arguing. Gooden testified, "He [Minto] say why you [Johnson] say that you gonna kill them boys, them boys." During a playback of Gooden's testimony about Johnson having a gun, the jury heard this testimony. Defendant requested a mistrial, arguing the testimony was prejudicial. The trial judge denied the request, concluding that the jury heard only a "snippet" of testimony without any context, and that Prince's testimony that the "gay guy . . . needs to be killed or must be killed" was effectively the same as Gooden's testimony. The judge also instructed the jury to disregard the testimony, and informed the jury that the statement was not attributed to defendant. This instruction appropriately remedied the situation and eliminated any potential for prejudice that the statement may have caused. It is presumed that the jury followed the instruction. State v. Brown, 180 N.J. 572, 583-84 (2004); State v. Manley, 54 N.J. 259, 270 (1969).
Defendant next contends he was deprived of a fair trial because the judge denied his request to instruct the jury that Hall was a suspect in the case, and that Hall refused to testify.
Defendant's theory of the case was that Hall shot Minto. Hall pled guilty to a weapons charge and agreed to testify at trial. Hall subsequently refused to testify. Defendant argued that Hall's refusal to testify meant that the State could not call Hall as a witness. The prosecutor advised the judge that the State wanted to call Hall nonetheless. The judge said that it was important that defendant have the opportunity to take Hall's testimony. However, in response, defendant's attorney said, "we don't want [Hall]" and that "I didn't subpoena [Hall]." Hall did not testify.
At the charge conference, defendant argued that, because he was unable to cross-examine Hall, he was entitled to an instruction that the jury could infer that Hall could be considered a suspect in the homicide. Interpreting this to be a request for a Clawans*fn4 charge, the judge denied it. The judge concluded that the State was not at fault for Hall's refusal to testify, defendant did not want Hall to testify, and defendant benefited from Hall not testifying because without Hall's testimony, the State could not use Hall's statement to the police that defendant was involved in the shooting.
We see no merit in defendant's contention. The jury heard that Hall was a suspect, and defense counsel argued in summation that Hall shot Minto. Thus, Hall's involvement in the shooting was a factual question for the jury to decide. If the judge had intervened in the manner defendant requested, the judge would have improperly infringed on the jury's fact-finding function. Also, defendant provides no legal basis for giving the requested instruction under the facts here.
Defendant next contends that the trial judge erred in charging the jury on the lesser-included offenses of aggravated manslaughter and reckless manslaughter. Defendant argues that the charge resulted in a compromise verdict. He also argues that there was reasonable doubt as to whether he committed murder, as evidenced by the jury finding him not guilty of murder, and that he would have been acquitted had it not been for the lesser-included offenses. We disagree.
"A trial court is obligated to charge lesser offenses 'when the facts 'clearly indicate' the appropriateness of that charge,' irrespective of the parties' wishes." State v. Perry, 124 N.J. 128, 193 (1991) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial judge "has an independent obligation" to instruct the jury on lesser-included offenses when the evidence "clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 327, 361 (2004) (citing State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004)). "What must be clearly indicated, however, is a rational basis in the evidence. A lesser included offense must be charged if there is a rational basis in the evidence to support such a charge. Perry, supra, 124 N.J. at 193 (citing State v. Crisantos, 102 N.J. 265, 271-73 (1986)).
An offense is an included offense when:
(1) It is established by proof of the same or less than all of the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. [N.J.S.A. 2C:1-8(d).]
Aggravated and reckless manslaughter are lesser-included offenses of murder. The difference between the offenses is as follows:
To be guilty of SBI murder, the defendant must have knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was "highly probable" that death would result. In aggravated manslaughter, by contrast, the defendant must have caused death with an "awareness and conscious disregard of the probability of death." If, instead, the defendant disregarded only a "possibility" of death, the result is reckless manslaughter. [Jenkins, supra, 178 N.J. 347, 363 (2004) (citing State v. Breakiron, 108 N.J. 591, 605 (1987); State v. Pearson, 318 N.J. Super. 123, 136 (App. Div. 1999)).]
Here, the State requested the lesser-included charges. The judge did not believe there was a rational basis for the charges, but felt constrained by Jenkins to give them. We find no error here. The evidence revealed that Minto was shot during a fast-moving, chaotic scene that followed a heated argument between Minto and Johnson; many of the partygoers had guns, including Hall; and Minto sought a gun to use against Johnson. Although defendant became involved and shot Minto, the jury could conclude that his involvement was not necessarily a oneon-one attack in which he inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of Minto's death and that it was highly probable that Minto's death would result. The jury could also conclude that this was an unplanned conflict that quickly erupted into violence and resulted in defendant recklessly causing Minto's death under circumstances manifesting extreme indifference to human life, or recklessly causing Minto's death. Thus, the lesser-included charges were proper.
Defendant contends for the first time that the verdict was against the weight of the evidence. Rule 2:10-1 provides, in relevant part:
In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.
Absent a motion for a new trial, we may entertain a verdict-against-the-weight-of-the-evidence challenge in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.) (citing State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990)), certif. denied, 134 N.J. 476 (1993).
We decline to entertain defendant's challenge as it lacks merit. We add these comments. The jury's verdict was grounded on its assessment of witness credibility. The jury believed Prince that defendant shot Minto. We "may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." Id. at 512 (citing State v. Haines, 20 N.J. 438, 446-47 (1956)).
We now address defendant's contention that his sentence is manifestly excessive because "there were no other facts which lead to the imposition of a sentence greater that the pivotal range[.]" Defendant does not elaborate on this contention, but says that Minto's death is an element of the crime and cannot be used to enhance the sentence. Defendant also claims, without explanation, that there are mitigating factors and that the record does not support the consecutive sentence.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215.
Here, the applicable crimes and sentencing ranges are: (1) a ten to thirty-year term of imprisonment for first degree aggravated manslaughter, N.J.S.A. 2C:11-4c; and (2) a three to five-year term of imprisonment for third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; N.J.S.A. 2C:43-6a(3). The judge sentenced defendant to a twenty-one year term of imprisonment with an eighty-five percent period of parole ineligibility on the aggravated manslaughter conviction, and a consecutive five-year term of imprisonment with a minimum parole ineligibility period of one year on the unlawful possession of a weapon conviction.
In imposing the sentence, the judge found aggravating factor three (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1a(3), based on defendant's flight to another jurisdiction and his apprehension nearly two years after the shooting; factor six, N.J.S.A. 2C:44-1a(6), (defendant's prior criminal record), based on defendant's prior conviction in California for possession of marijuana with the intent to distribute;*fn5 and factor nine, N.J.S.A. 2C:44-1a(9), (the need to deter defendant and others from violating the law), based on deterring defendant and others "from arming themselves, particularly when they're going out to some social event." The judge also found, but did not attribute much weight to, mitigating factor five, N.J.S.A. 2C:44-1b(5), (the victim's conduct induced or facilitated defendant's conduct), because the argument Minto had was with Johnson, not defendant. The judge found that the aggravating factors preponderated over the mitigating factors. The judge imposed the consecutive sentence because defendant brought a weapon to the club, and the crime of possession facilitated the homicide.
We discern no abuse of discretion. The judge's findings are amply supported by the evidence, and the sentence imposed is just above the mid-range for aggravated manslaughter and at the top of the range for possession of a weapon. See State v. Natale, 184 N.J. 458, 487-88 (2005). Also, the crime of possession of a weapon was a separate offense that facilitated the commission of the homicide. Thus, the judge properly imposed consecutive sentences. 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).