June 13, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATHANIEL HALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-02-0170; 05-02-0249; 04-05-0693.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2008
Before Judges Sapp-Peterson, Messano and Newman.
Middlesex County Indictment Number 05-02-0170 charged defendant, Nathaniel Hall, with first degree attempted murder, in violation of N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3(a)(1); and N.J.S.A. 2C:11-3(a)(2) (count one); second degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (count two); third degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7) (count three); second degree possession of a weapon for unlawful purposes, in violation of N.J.S.A. 2C:39-4(a) (count four); and third degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b) (count five). Filed the same day, Middlesex Indictment Number 05-02-0249 charged defendant with second degree possession of a weapon by a previously convicted person, in violation of N.J.S.A. 2C:39-7(b).
The jury acquitted defendant of the charges of attempted murder (count one), and the first count of aggravated assault (count two). Defendant was found guilty of the second count of aggravated assault (count three), possession of a weapon for unlawful purposes (count four), and unlawful possession of a weapon (count five). In a subsequent proceeding on the same day, the jury found defendant guilty of possession of a weapon by a previously convicted person under indictment number 05-02-0249.
The State moved for an extended term sentence which was denied. The court imposed a ten-year sentence with a five-year period of parole ineligibility for count four, possession of a weapon for unlawful purposes. On counts three and five, aggravated assault and unlawful possession of a weapon, respectively, the court imposed two concurrent five-year terms. With regard to Indictment Number 05-02-0249 charging defendant with possession of a weapon by previously convicted person, the court imposed a consecutive ten-year sentence with a five-year period of parole ineligibility. The court subsequently accepted defendant's guilty plea to a violation of probation under Indictment Number 04-05-0693, and then sentenced defendant to a five-year custodial sentence consecutive to the sentences under Indictment Number 05-02-0170 and Indictment Number 05-02-0249. The court imposed the requisite monetary penalties. Defendant appeals. We affirm.
The criminal charges grew out of an earlier fist fight between defendant and Lawrence Cody shortly followed by a shooting at Cody by someone identified by Cody as defendant. Cody testified that he resided at the Hamilton Road Apartments (Apartments) when the event in question took place on December 5, 2004. On that date, at approximately 5:30 p.m., while coming home from a movie with his son, he ran into defendant at the Apartments. He and defendant began talking and his son went to play with some of his neighbor's children.
Cody had known defendant for a few years because defendant had two children by Cody's cousin-in-law. While the conversation started out friendly, at some point, defendant became upset and "got real loud [and] threatening." Cody told defendant to stop yelling because children, including his son, were watching. Defendant became more upset and even threatened to kill Cody. At this point, Cody called his son and told him to go on the step where Cody's neighbor was, and asked the neighbor to keep an eye on his son. He then turned to walk up the step and away from defendant, but defendant sucker punched him. They engaged in a fist fight at this point. Some people from another building came to break it up. Cody was angry and challenged defendant to continue the fight as defendant got into a friend's car. Defendant replied that he "would be back".
Cody then went into his apartment with his son, but within a short time span returned outside to smoke a cigarette. Cody sat on a bench and smoked a cigarette while talking to two individuals, the superintendent of the apartments' husband and another person whom he did not know. As he was telling them about the earlier event, he saw defendant and two other men walking across the parking lot towards him.
Cody recognized defendant's walk. He also noticed that defendant had his hand in his pocket. Cody's initial thought was that defendant had returned to fight him. When defendant got a little closer, he noticed the barrel and chamber of a gun sticking out of defendant's pocket. When defendant got within thirty feet of him, defendant stated "I told you I'll be back mother f'r". Cody recognized defendant's voice. Defendant began shooting. Cody had raised his hands at the time and the first shot went between his head and his hand. The second shot went through his pants and hit the piece of wood behind him. At this point, he began running. As he was running, a third shot grazed the upper part of his left buttock cheek. He continued to run until he went around the corner of the building and was out of sight.
He did not leave until he heard a car accelerate. The gun used by defendant looked like a .38 revolver because it had a spinning chamber. Cody indicated there was no question in his mind that defendant was the one who shot at him.
On cross-examination, Cody testified that after the incident, he told, Officer Byrom, one of the officers who arrived to investigate the shooting that he was grazed by a bullet. He testified that the swelling from the graze had gone down significantly by the time the investigating officers arrived and that he did not bleed from the injury. He also testified that the holes found in his clothing after the shooting were bullet holes that were not in his pants or tee shirt when he put his clothes on before the incident.
Detective Frederick DeLong of the New Brunswick Identification Bureau testified that defendant came into headquarters following the shooting. He testified that he met with Cody and Detective David Smith from the New Brunswick Police Major Crimes Unit. He stated that because Cody did not have a change of clothing with him, they escorted Cody to his apartment so that they could collect the clothing that he had on at the time of the shooting. After collecting Cody's shirt and jeans, the two detectives went outside to search for any bullets or shell casings.
During their search of the area where the shooting took place, Detective Smith found a bullet lodged in the landscaping alongside of the building. He testified that officers did not send Cody's clothing to the lab for testing because it was not standard procedure. He stated that "[a]s a matter of fact, the State police no longer even conducts gunshot residue tests". Detective Delong also testified that although he could not state with absolute certainty when the bullet he recovered was fired, he thought that it was fired within a short period of time before it was found because of fresh wood shavings surrounding the bullet on the pavement.
On cross-examination, Detective DeLong testified that he did not find any wounds in the buttock area where Cody alleged he was grazed by a bullet. The detectives never recovered a gun in their investigation of the incident.
On cross-examination, Detective Smith testified that in his opinion, the holes in Cody's clothing were bullet holes even though they were different in size. He indicated that it was possible that the difference in size could be explained by a trajectory of a bullet, depending on which way it entered an object, resulting in a bigger or smaller hole. On cross-examination he acknowledged that defendant never informed any of the detectives or officers that there were two witnesses, including the Apartments superintendent's husband who Cody claimed was present at the time of the shooting.
Larry Dukes appeared for the defense. He testified that on the day in question, he was staying at the Hamilton Road Apartments with his fiancée. He knew defendant from seeing him over the course of years and was on speaking terms with him. Dukes also knew Cody and used to hang out with Cody on occasion. He considered Cody basically a friend. He was in front of one of the buildings at the Apartments, smoking a cigarette by himself, when three men walked up and passed right by him. He testified that he recognized one of the three men as Kareem, someone he also knew, and another, whose name he did not know as Kareem's cousin. He did not know the third man's name, but he had played basketball with him.
Dukes testified that he spoke to Kareem when the three men walked past him and he was surprised when Kareem did not reply. After the men passed him, gun shots started ringing out and he saw Cody run away. Immediately after the shots, the three came running back down the sidewalk, entered a car and drove away. On the night of the incident, he did not tell officers what he had seen because of a warrant out for his arrest.
On appeal, Hall raises the following issues:
BY EXPRESSING HIS OPINION THAT THE VICTIM WAS TELLING THE TRUTH, DETECTIVE SMITH DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE COURT FAILED TO PROVIDE THE JURY WITH AN IDENTIFICATION CHARGE WITH RESPECT TO THE VICTIM'S IDENTIFICATION OF DEFENDANT AS THE PERSON WHO SHOT AT HIM, THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, §§ 1, 9, 10. (Not Raised Below)
THE COURT'S FAILURE TO INSTRUCT THE JURORS THAT THEY COULD CONSIDER THE VICTIM'S FAILURE TO ADVISE THE POLICE THAT HE KNEW THE IDENTITY OF ONE OF THE WITNESSES TO THE SHOOTING AS SUBSTANTIVE EVIDENCE, IN THE CONTEXT OF A PRIOR INCONSISTENT STATEMENT, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL, U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. 1, §§ 1, 9, 10. (Not Raised Below)
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE DETECTIVE SMITH'S TESTIMONY THAT HE OBTAINED DEFENDANT'S SOCIAL SECURITY NUMBER FROM THE IN-HOUSE COMPUTER WAS NOT RELEVANT TO ANY MATTER AT ISSUE, SUGGESTED THAT THIS WAS NOT DEFENDANT'S ONLY ARREST, WAS INADMISSIBLE UNDER N.J.R.E. 404(b), AND DENIED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, §§ 1, 9, 10. (Not Raised Below)
DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING DETECTIVE SMITH AND OFFICER DELONG TO OFFER INADMISSIBLE OPINION TESTIMONY, AND FURTHER BY NOT DELIVERING AN INSTRUCTION ON EXPERT TESTIMONY, IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, §§ 1, 9, 10. (Not Raised Below)
THE CONVICTION MUST BE REVERSED BECAUSE IT STANDS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)
DEFENDANT'S SENTENCE MUST BE REDUCED OR REMANDED; THE INDIVIDUAL SENTENCES ARE EXCESSIVE, AND THERE WAS NO STATEMENT OF REASONS TO SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES.
Before we discuss the issues raised by defendant, we underscore that defendant was acquitted of the two most serious offenses against him; namely, attempted murder and second-degree aggravated assault. In rendering this selective verdict, the jury obviously considered each count of the indictment with discernment. Against this backdrop, defendant's arguments are all based on a plain error basis. The contention in Point VI that the verdict was against the weight of the evidence is meritless because we do not re-evaluate credibility determinations in the absence of evidence of jury irrationality. Here, the verdict is supported by the testimony of Cody if believed by the jury. There was no miscarriage of justice. R. 2:10-1.
The argument in Point II that the trial court on its own should have given an instruction on identification is unavailing. The case did not involve identification. Of course, specific instruction on identification is essential where that is the key issue to be determined. State v. Copling, 326 N.J. Super. 417, 432 (App. Div. 1999), certif. denied, 164 N.J. 189 (2001). Here, Cody knew defendant for a few years because he had two children by the victim's cousin by marriage. Cody also was engaged in a fist fight with defendant that very day and, as promised, defendant returned some fifteen minutes later brandishing a small caliber handgun from which he fired three shots. Cody recognized defendant not only by his walk, but by his voice when he shouted, "I told you I'll be back mother f[ucke]r".
Dukes who knew defendant testified that he did not see defendant with the three individuals who passed him. He did note that shots were fired, and he saw Cody run away. Dukes's credibility was brought in issue by his prior convictions with the appropriate charge limiting those convictions to ascertain whether they affected his credibility. In summation, defense counsel emphasized that the only evidence against defendant was Cody's testimony. Defense emphasized that there was no corroborating evidence. He also indicated that Dukes testified that he did not see defendant in the threesome that allegedly confronted Cody that evening. He asserted that Cody had a grudge against defendant for the earlier fight they had, and sought to get even by identifying him as the shooter. The case was not tried on identification, but rather on the credibility of the witnesses.
With regard to the arguments set forth in Points I and IV, defendant extracts two specific questions and answers furnished by Detective Smith on cross-examination that he claims denied him a fair trial. The response that Detective Smith believed that Cody "was telling the truth", vouched for Cody's credibility and was improper. State v. Frisby, 174 N.J. 583, 594 (2002)(citing State v. Hightower, 120 N.J. 378, 426 (1990)). The acknowledgement that the social security number which was in the question framed to Detective Smith, was from the in-house computer of the police, suggesting that he had a prior record, was not objected to at trial.
To begin with, it is inappropriate to consider the particular questions and answers in a vacuum; rather the entire line of cross-examination of Detective Smith by defense counsel has to be examined. Defense counsel noted that defendant was not arrested on the day of the incident and then proceeded with the following cross-examination:
Q: But, in fact, if you look at Officer Byrom's report you looked down at the bottom it indicates there are some boxes that says can a suspect be named? It checks, yes. Can a suspect be located? It is checked yes. Can a suspect be described? It is checked yes, right? See those little boxes at the bottom of Byrom's report?
Q: And, in fact, in the box that lists the suspects, it says suspect two unknown. Suspect three unknown but suspect one is named as Nathaniel Hall and an address is given. In fact, a Social Security number is given, correct?
A: Yes. That was received from our inhouse computer.
Q: And though, there was a charge of attempted murder or shooting or attempted shooting and you knew where this guy was nobody went to try to find him or arrest him that day?
A: At the time I could not find him, I couldn't find him in the area of Hamilton Road. And I also called Franklin and advised them that I was going to be signing complaints on Mr. Hall.
Q: But nobody went to the address that was given for Mr. Hall 204 Hillcrest Avenue, Somerset, Somerset is the next town over from New Brunswick, right?
Q: So it is not that far away, right?
Q: And though, this guy was identified and was supposedly fresh from a shooting nobody went to try to find him?
A: As I said, I advised Franklin that I was going to be signing complaints.
Q: So there was no determination to see if there was any evidence that would corroborate what Mr. Cody said by investigating Mr. Hall or finding out what Mr. Hall had to say?
A: Well, we have a victim saying that he was shot. And the person who shot him I can through my experience I can guarantee you is not going to be home after they shot someone.
Q: And, in fact, but if Mr. Cody is lying and, in fact, he wasn't shot you might expect to find Mr. Hall at home, correct, so you could question him?
A: I don't believe he was lying.
Q: So you made the determination that he wasn't lying? Fair to say that when somebody fires a handgun, leaves powder residue, powder stains on the hand which you could have determined from finding Mr. Hall?
A: It's possible.
Q: But didn't take that step?
Q: Possible you could have found a gun that was used that was described by Mr. Cody had you gone looking for Mr. Hall, correct?
A: Again with my experiences they usually get rid of the gun.
The thrust of this examination was at least two fold: (1) that the police did not do a thorough investigation; and (2) that no corroborating evidence of what Cody had said was obtained. Defense counsel repeatedly emphasized in closing that there was no corroborating evidence of Cody's testimony, even though defendant's address was known, and the police could have sought to investigate immediately following the events.
When the response to the first objected to answer that defendant was not lying, is considered in the context of the cross-examination, the answer could be interpreted as an explanation for the inaction of Detective Smith who was the lead investigator and less an assessment of Cody's credibility. While the answer would have likely been stricken if there had been an objection, the answer was more an excuse for police inaction than support for Cody's believability.
With respect to the fact that the police were able to locate defendant's social security number in the in-house computer, defendant maintains that this suggested that there was some record of previous arrests or convictions. Again it was counsel's question that brought about the response. The answer was in the affirmative and additionally disclosed the source of the social security number. The answer was a reasonable response to the question. Furthermore, the context of the question was during the line of cross-examination attacking the police for not continuing an investigation which might have led to corroborating evidence. Defense counsel utilized this information in emphasizing to the jury that the only evidence in the case against defendant was the testimony of Cody. If Cody was not believed, the entire case would be undermined.
We also do not assume that jurors would find information stored in a data base in a police computer which included a person's social security number would imply that defendant had prior arrests or convictions. It is not the same as a police department's possession of a mug shot.
The extraction of neither of these individual responses prejudiced defendant, much less the kind of prejudice to rise to the level of plain error. Even considered together they were not capable of producing an unjust result. State v. Macon, 57 N.J. 325, 336 (1971).
Defendant's contention in Point IV that Detective Smith and Detective DeLong's testimony constituted inadmissible expert testimony and led to an unjust result is the consequence of invited error on the part of the defense. All of the testimony developed about the bullet holes in Cody's tee shirt and the bottom of his jeans was brought out on cross-examination. None of this testimony was developed on direct examination. Prior to the opening statements, defense counsel expressed a concern with respect to the prosecutor's opening indicating that there was no expert testimony anticipated in connection with the alleged bullet holes in the tee shirt and pants of the victim. He urged the court "to preclude the prosecutor from referring to those holes in the clothing as bullet holes until such time as some witness establishes that they are indeed holes that come from bullets." He continued to argue that neither of the police officers scheduled to testify were competent to make the determination "without some forensic support, without some expert qualification to determine that the holes in the clothing are from other than shots or something and they come from bullets." While defense counsel recognized that Cody would refer to them as bullet holes because he claims they were, nonetheless, the defense insisted that the prosecutor not elicit such testimony from either of the police witnesses that they were bullet holes.
In view of defense counsel's clear and unequivocal effort to stymie the prosecutor from developing this testimony, he nonetheless brought out this testimony from the police witnesses during cross-examination. From the defense perspective, it was designed to show that the clothing did not contain bullet holes at all, or, if they did, the location of the bullet holes were such that whoever fired the gun was not trying to kill Cody. There can be no clearer example of invited error than what was brought out on cross-examination of the police as to the bullet hole testimony. State v. Pontery, 19 N.J. 457, 471 (1955); State v. Harper, 128 N.J. Super. 270, 277-78 (App. Div. 1974), certif. denied, 65 N.J. 574 (1974).
In Point III, defendant argues that the jury should have been instructed that prior inconsistent statements were to be used as substantive evidence, as well as to decide if the witness was credible. No instructions were given regarding prior inconsistent statements, nor were they requested.
The inconsistent statement was not a statement at all. Rather, Cody knew one of the two men who were with him at the time the three men arrived before the shooting actually began. When the shooting commenced, the other two men fled. Cody knew one of the men who was the husband of the woman who was caretaker of the Apartments. He did not mention this to the police. At trial, he readily acknowledged that these men witnessed part of the events, and that he knew the identity of one of them.
State v. Gross, 121 N.J. 1, 16-17 (1990) advises the trial court how to treat prior inconsistent statements in its instructions to a jury. Gross, supra, 121 N.J. at 3 concerned a prior, unsworn written statement. The Court indicated that a jury might be reluctant to accord an unsworn statement the same worth as sworn testimony. Id. at 16-17. Silence can be inconsistent with a sworn trial statement, but silence does not pose the same problems as a previous oral statement.
Here, Cody did not deny his silence, but furnished the information to the jury that he did not give to police officers. He did however, explain the prior silence by commenting that "people don't want to get involved with it. They see it but they don't see it." Additionally, the police who canvassed the area following the shooting did not find anyone who was cooperative which had been their experience on prior occasions.
Under these circumstances we fail to see how the prior inconsistent statement charge would have made any difference. The trial judge did charge the jury concerning credibility which included "whether the witness made any inconsistent or contradictory statements." While the jury charge addresses the jury's right to consider out of court statements substantively, silence does not have an independent substantive value. It is not the same as a person repudiating or contradicting either an oral or prior written statement with trial testimony. We find no error, much less plain error. R. 2:10-2.
Counsel also contends that the jury should have been given an instruction with a variation of the Clawans*fn1 charge. Defendant maintains that he should have been entitled to have the jury informed that it could draw an adverse inference from the absence of the identifiable witness, the caretaker's husband. Of course, there was no showing that this witness was available or that defendant was unaware of this person and could have equally been in a position to bring him to trial. Indeed, even if a party does not want a Clawans charge but the right to make a Clawans comment in closing, the party so doing must follow the rules of Clawans. Here, defense counsel was able to capitalize in closing by commenting that the persons seated with Cody at the time the shooting occurred were potential witnesses yet they did not appear in the courtroom to corroborate Cody's testimony. The defense went on to indicate that the police were not told of these witnesses. Thus, the defense was able to make a comment without seeking permission of the court to do so. If anything, defendant may have gained more mileage from this than had he appropriately requested the court to make the Clawans-type comment. We see no plain error in not instructing the jury on prior inconsistent statements or in furnishing a Clawans charge when no timely request was ever made.
Lastly, defendant contends in Point VII that the sentence must be reduced or remanded and that the individual sentences were excessive and lacked reasons to support the imposition of consecutive sentences. The trial judge denied the State's motion for an extended term, but imposed the longest ordinary term. Referring to defendant's background, the trial judge noted that he had been arrested twenty-two times as an adult between April 1993 and the present sentencing in May 2006, was convicted of three disorderly persons offenses and six indictable charges. Defendant had received the benefit of the Pretrial Intervention program (PTI) and probation but continued to violate the law. The trial judge found no mitigating factors whatsoever. While the reference to the depravity of the crime had no evidential basis as an aggravating factor, the other aggravating factors of an extensive prior record, the need to deter defendant from violating the law and the likelihood of continued criminal activity more than sufficed to support the sentence meted out to defendant.
Indeed the conviction on the indictment involving the possession of a weapon by a person not entitled to such possession was properly run consecutive to the conviction involving possession of a weapon for an unlawful purpose. State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1987). The violation of probation to which defendant pleaded guilty involved prior and unrelated crimes. A consecutive sentence would insure that there were no free crimes. Id. at 643. Our review of the record satisfies us that the finding on aggravating and mitigating factors which there were none was based on the evidence, that the sentencing guidelines were not violated, and that the consecutive sentences were appropriate for defendant whose record speaks volumes for his career in crime. An aggregate sentence of twenty-five years in prison with ten years of parole ineligibility was well founded. We find no abuse of sentencing discretion. State v. Roth, 95 N.J. 334, 365-66 (1984).
The judgments of convictions are affirmed.