June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TREMAYNE LAMAR BRISTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-10-1347.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2008
Before Judges Cuff and Lisa.
Along with several co-defendants, defendant was the subject of a multi-count indictment charging him with: (1) first-degree murder of James Anderson, N.J.S.A. 2C:11-3a(1) or (2) and N.J.S.A. 2C:2-6 (count one); (2) second-degree possession of a handgun with a purpose to use it unlawfully against Anderson, Victor Sanders, and Romaine York,*fn1 N.J.S.A. 2C:39-4a (counts two, five and seven);*fn2 (3) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); and (4) first-degree attempted murder of Sanders and York, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6 (counts four and six). During pretrial proceedings, the court denied defendant's motions to dismiss the indictment and to bar evidence of oral statements he made immediately prior to the shooting.
After a ten-day trial, the jury found defendant guilty on count one of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. The jury also found defendant guilty on counts two and three. Defendant was acquitted of the attempted murder charges in counts four and six.
After merging counts two and three with count one, the judge sentenced defendant to twenty years imprisonment subject to an 85% parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. In addition to imposing all mandatory monetary assessments, the judge ordered defendant to pay $25,000 in restitution to the victim's children, jointly and severally with his co-defendant, Jonathan Wheeler, who was also convicted at the same trial of the same charges as defendant.*fn3
Defendant argues on appeal:
POINT I IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE OF PROSECUTORIAL MISCONDUCT IN THE GRAND JURY, THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN APPLYING THE DOCTRINE OF "RES GESTAE"
POINT II TESTIMONY THAT DETECTIVE BORDAMONTE "BELIEVED" THAT TYRONE SANDERS AND RONALD ANDERSON GAVE THE POLICE INFORMATION THAT WAS HELPFUL IN THE INVESTIGATION CONSTITUTES PLAIN ERROR (NOT RAISED BELOW)
POINT III THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION
POINT IV THE 20 YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT ONE FOR AGGRAVATED MANSLAUGHTER WAS MANIFESTLY EXCESSIVE AND THE ORDER OF $25000 RESTITUTION WAS AN ABUSE OF DISCRETION
(A) THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING AGGRAVATING FACTORS N.J.S.A. 2C:44-1[a(1)] AND N.J.S.A. 2C:44-1[a(2)] TO BE APPLICABLE
(B) HE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE CUSTODIAL TERM ON THE DEFENDANT'S CONVICTION THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM
(C) THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING RESTITUTION IN THE AMOUNT OF $25000
We reject the first three arguments and affirm defendant's conviction. However, we remand for reconsideration of the sentence imposed.
Defendant was a drug dealer and member of a group known as the "Pittsburgh Crew." Between April and May 2002, defendant traveled from Pittsburgh, Pennsylvania to Passaic to meet with Anderson and York to conduct several drug-related transactions. At some point, defendant advanced money to Anderson and York to acquire a large amount of heroin. York insisted that he and Anderson were robbed of this money when they went to buy the drugs in Newark. The Pittsburgh Crew, however, suspected that Anderson had kept the money instead.
On the evening of May 28, 2002, at about 11:00 p.m., defendant ran into Anderson's brother Ronald and Tyrone Sanders at the T & L Lounge in Passaic. Defendant was looking for Anderson and asked both Ronald and Tyrone to place phone calls to Anderson. Defendant told Tyrone to tell Anderson that if he didn't bring the money he stole, defendant was going to kill him and his family.
On May 29, 2002, at about 12:30 a.m., Anderson, York, and Tyrone's brother Victor met around the corner from the T & L. York brought with him $10,000 that Anderson had requested so they could pay back defendant. York also brought along a gun and a bulletproof vest. The three drove to the T & L, where they met defendant and another "little guy" outside. Wheeler was standing by a van across the street, and two other individuals were by a nearby car.
Anderson attempted to give defendant the money, and York proceeded to show defendant the gunshot wound he allegedly sustained during the robbery in Newark. This did not appease defendant, who was angered that Anderson had not returned his calls. As the encounter escalated, defendant stated, "I beat two homicides, I'll beat this one, too." Then, defendant got a gun from the "little guy," pointed it at Anderson, and said, "I'm going to blow your mother fuckin' head off." Anderson and York took off running in opposite directions as multiple gunshots were fired. Victor was already across the street by that point. Both York and Victor testified that defendant and Wheeler were shooting at them, but that they did not fire back.
When Passaic police officers arrived at the scene, they observed Anderson lying on his back on the sidewalk next to the gas station across the street from the T & L. Anderson was taken to Passaic General Hospital, where he died of multiple gunshot wounds. Police discovered a .38 caliber handgun lying about two feet away from where Anderson had fallen, eleven .40 caliber shell casings in the parking lot of the T & L, a bullet hole in the front driver's side door of a nearby Toyota Camry, projectiles on the ground in front of and toward the back of the Camry, a bullet hole in a gas port, and several projectiles near the gas pump and in front of the gas station.
Detective Roy Bordamonte of the Passaic Police Department conducted the investigation. He obtained information from Tyrone Sanders, Ronald Anderson, Victor Sanders, and Romaine York. As a result of this investigation, defendant, Wheeler, and two other individuals were taken into custody on June 10, 2002.
We first address defendant's argument that the prosecutor committed misconduct by presenting testimony to the grand jury that defendant had escaped conviction for two murder charges.
Specifically, defendant refers to the following statements by York, which were read to the grand jury by Bordamonte:
"I then told [defendant] to let everything go because he already had the money. But he continued to ramble, kept talking. He also kept bragging about how they were murderers, how he beat a double murder" -- "double homicide wrap. He then told us that he'll kill us."
"I met [the Pittsburgh Crew] about a month ago. They had a couple of different guys. But for the most part, they were all the same guys from this weekend. I met them at the Tropical Club in Passaic through [Anderson]. We had some drinks together. [Anderson] told me they were from Pittsburgh. Another kid told me to watch out for them because one of them beat a double murder charge." [Emphasis added.]
Defendant also refers to Bordamonte's testimony that defendant had been a suspect in a prior homicide case, but that the case did not go forward because a witness had changed his story.
After these statements were presented to the grand jury, the prosecutor issued the following instruction:
I know you've dealt with some evidence with regard to prior crimes. . . .
Again, this -- this information, if you -- the fact that the individuals may or may not have been involved in prior homicides, you're not to use that to say well, simply because they were involved in one, they're bad persons, that I can return an indictment here.
The reason that this information is submitted to you is that the defendants --or -- or the victims, rather, James Anderson and the other people he's involved with, are claiming that these individuals made these threats to them and made these statements to them.
This information is being submitted to you in order to lend perhaps some credibility to that fact that these individuals who said that they had committed these incidents, these prior homicides and had gotten away with it or had beat it, this information is being submitted to you in order to give some credibility to those threats and serves to indicate the identity of Mr. Wheeler and Mr. Briston.
The trial court denied defendant's motion to dismiss the indictment on the grounds of prosecutorial misconduct. The court found that defendant's statement just prior to the shooting that he had beat a double homicide charge fell within the category of res gestae evidence. The court also found that although the prosecutor did not adequately explain the law governing prior crimes evidence, his instructions to the grand jury were an attempt to minimize the significance of that particular evidence and therefore did not constitute misconduct. We conclude that the trial court properly exercised its discretion in reaching its decision. See State v. Hogan, 144 N.J. 216, 229 (1996).
Res gestae evidence relates directly to the crime that is charged. State v. Martini, 131 N.J. 176, 242 (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed. 2d 137 (1995). Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of it, or presents the full picture of the crime to the jury. State v. Long, 173 N.J. 138, 156 (2002); State v. L.P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 205 (2001); State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Thus, a remark that was part of the mosaic of the criminal event and directly related to the criminal behavior will not be precluded. Long, supra, 173 N.J. at 158.
Defendant's statement just prior to the shooting that he beat a double homicide charge was properly presented to the grand jury as res gestae evidence. The statement reflected defendant's state of mind at the time of the shooting and was integral to the sequence of events leading up to the shooting. Thus, it was necessary to present the statement to the grand jurors so they could get a full picture of the crime.
The other two statements regarding defendant's alleged involvement in prior crimes were not offered for the purpose of inflaming or misleading the jury, but to lend credibility to York's recollection of what defendant said prior to the shooting. The presentation of this extraneous evidence was unwarranted, particularly in light of the overall scope of the evidence presented to the grand jury. However, any resulting prejudice was ameliorated by the prosecutor's instruction that the grand jurors could not return an indictment based on information that defendant had been involved in other crimes. The grand jury was not deprived of its fact-finding function, nor was the indictment so "manifestly deficient or palpably defective" as to warrant its dismissal. See Hogan, supra, 144 N.J. at 229.
We next consider defendant's contention that Detective Bordamonte improperly bolstered the credibility of Tyrone Sanders and Ronald Anderson, as trial witnesses for the State. Specifically, defendant refers to the following exchange between the prosecutor and Bordamonte, which was not objected to at trial:
Q: Did you have an opportunity to speak with [Mr.] Sanders?
A: Yes, later on.
Q: And for legal reasons, without telling what he said, did he give you information that you believed was helpful in the investigation?
Q: During the course of your verbal interviews with both Mr. Ronald Anderson and Tyrone Sanders, you indicated that you believed you received information that would further the investigation, correct?
A: Yes, I did. [Emphasis added.]
We disagree with defendant's characterization of Bordamonte's testimony.
It is well settled that a witness may not opine on the credibility of another witness. State v. Miraballes, 392 N.J. Super. 342, 361 (App. Div.), certif. denied, 192 N.J. 75 (2007). The question of a witness' credibility has routinely been regarded as a decision reserved exclusively for the jury. State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993); see also State v. Pasterick, 285 N.J. Super. 607, 620 (App. Div. 1995) ("There is no provision in our legal system for a 'truth-teller' who is authorized to advise the jury on the basis of ex parte investigations what the facts are and that the defendant's story is a lie."). Thus, it is an encroachment upon the province of the jury to permit admission of expert testimony on the issue of a witness' credibility. J.Q., supra, 252 N.J. Super. at 39. Any improper influence on the jury that could "tip the credibility scale" may constitute plain error. State v. Frisby, 174 N.J. 583, 596 (2002).
We do not view Bordamonte's testimony as an improper attempt to bolster the credibility of other witnesses. Bordamonte merely stated that the witnesses provided useful information during the course of the investigation. He did not go so far as to testify to their overall credibility, nor did he suggest to the jury that their testimony was to be believed. The prosecutor framed his questions inartfully, embellishing the approved formulation, "upon information received." See State v. Bankston, 63 N.J. 263, 268 (1973). Using the word "believed" was inappropriate, but in the context used here, harmless, as evidenced by the absence of an objection. We do not find plain error clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
Defendant also argues that the prosecutor made inaccurate factual assertions during summation that effectively deprived him of his right to a fair trial. During his summation, Wheeler's counsel urged the jury to find that Anderson had fired the gun that was later found lying near his body. The prosecutor argued that Anderson did not fire his weapon and he stated:
And another thing that that autopsy report tells you, James Anderson didn't fire that weapon that evening. Yes, there was a spent shell in the revolver, but that's the nature of a revolver. That shell could be in there a day, a week, a year, until someone removes it. But if someone fired that gun, there would be powder or stippling on the shooter's hand.
You heard the stipulation of the autopsy. The hand was examined. There was no powder, there was no stippling. James Anderson did not fire that gun that evening. . . .
Defendant, through his counsel, made a belated pro se objection the following day, contending the autopsy report did not support the prosecutor's comment. The objection was overruled.
Prosecutors are afforded considerable leeway in making opening statements and summations, State v. DiFrisco, 137 N.J. 434, 474 (1994), but they should not make inaccurate factual or legal assertions, and their remarks must be confined to evidence presented during trial and reasonable inferences to be drawn there from. State v. Smith, 167 N.J. 158, 178 (2001). Nevertheless, a prosecutor's improper remark during summation will not constitute grounds for reversal unless it was so egregious as to deprive defendant of his right to a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987).
In determining whether a remark was sufficiently egregious to warrant reversal, an appellate court must consider whether defense counsel made a timely and proper objection, whether the remark was promptly withdrawn, and whether the court ordered the remark stricken from the record and ordered the jury to disregard it. State v. Frost, 158 N.J. 76, 83 (1999). Generally, if no objection was made, the remark will not be deemed prejudicial. Ibid. A failure to object suggests that defense counsel did not believe the remark was prejudicial at the time it was made, and it also deprives the court of the opportunity to take curative action. Id. at 84.
The autopsy report described the gun shot wounds to the victim's head, back, hip, leg, and left palm. It further stated, "there is no evidence of powder or stippling in any of the wound sites." The report did not specifically state that there were no powder or stippling on the victim's hands. Thus, the prosecutor's remark regarding the lack of stippling on the victim's hand was not a fair comment on the evidence.
However, the remark was not sufficiently egregious to deprive defendant of his right to a fair trial. There was ample evidence from which a juror could conclude that defendant was one of the shooters. Furthermore, the prosecutor's remark did not strike at the heart of his defense, which primarily focused on attacking the credibility of the State's three main witnesses. And, the absence of a timely objection indicates that defense counsel did not believe the remark to be prejudicial at the time, and also deprived the court of the opportunity to issue a curative instruction. See Frost, supra, 158 N.J. at 83.
The judge sentenced defendant to a twenty-year term of imprisonment subject to an 85% parole disqualifier and five years parole supervision, and further ordered him to pay $25,000 in restitution. In fashioning the sentence, the judge found the following aggravating factors to apply: the nature of the offense and the role of the actor, N.J.S.A. 2C:44-1a(1); the harm to the victim, N.J.S.A. 2C:44-1a(2); the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); defendant's prior record, N.J.S.A. 2C:44-1a(6); and the need for deterrence, N.J.S.A. 2C:44-1a(9). The judge found only one mitigating factor: the victim's conduct induced or facilitated the crime, N.J.S.A. 2C:44-1b(5). Defendant argues that the judge erred in finding aggravating factors (1) and (2) because those factors encompass elements of the crime charged and therefore constitute impermissible "double counting." We agree.
A court may not consider the particular elements of a crime as aggravating factors. Thus, where the death of the victim is an element of a manslaughter charge, it cannot be considered as an aggravating factor for sentencing purposes. State v. Carey, 168 N.J. 413, 425 (2001); State v. Pineda, 119 N.J. 621, 627 (1990); State v. Jarbath, 114 N.J. 394, 404 (1989).
The judge stated that he considered the nature and circumstances of the crime, defendant's role in that crime, and the seriousness of the harm inflicted upon the victim. However, the judge did not adequately explain why this crime was particularly cruel or heinous, nor is there any indication in the record that the victim suffered additional harm beyond his death. We discern no basis for application of aggravating factors (1) and (2), and therefore remand for reconsideration of the sentence without reference to those factors. We note that there is no dispute as to the applicability of aggravating factors (3), (6) and (9).
In ordering the restitution award, the judge noted that there are children that need to be provided for and that $25,000 was an appropriate sum for defendant to pay. Defendant argues the trial court failed to analyze the appropriate factors in awarding restitution. We agree.
A court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment if (1) the victim, or in the case of a homicide, the nearest relative of the victim suffered loss; and (2) the defendant is able to pay or, given fair opportunity, will be able to pay restitution. N.J.S.A. 2C:44-2b. The amount of restitution may not exceed the victim's loss. N.J.S.A. 2C:43-3; State v. Newman, 132 N.J. 159, 167 (1993). Before a court imposes restitution, it must make the required findings under N.J.S.A. 2C:44-2b, and it must place those findings and reasons on the record. State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.), certif. denied, 138 N.J. 265 (1994). A hearing is generally required unless there is no dispute as to the amount necessary to make the victim whole or the defendant's ability to pay. State v. McLaughlin, 310 N.J. Super. 242, 263-65 (App. Div.), certif. denied, 156 N.J. 381 (1998); State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994).
The judge made no findings with respect to defendant's ability to pay the $25,000. Furthermore, we do not see anything in the record that indicates that defendant has the present or future ability to pay this award.
Defendant's conviction is affirmed. The matter is remanded for reconsideration of the sentence imposed and a hearing on the restitution award in accordance with this opinion.