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State v. Patrick

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 26, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KHALIL R. PATRICK, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-0975 and 05-09-0976.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 8, 2008

Before Judges Reisner, Sapp-Peterson and Alvarez.

Defendant Khalil Patrick appeals from his conviction by a jury on the following charges: four counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); two counts of fourth-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(3); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful weapons possession, N.J.S.A. 2C:39-5d; and certain persons not to have weapons, N.J.S.A. 2C:39-7b (second-degree) and N.J.S.A. 2C:39-7a (fourth degree). He also appeals from his aggregate sentence of fifty-five years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

We affirm the conviction. However, we are constrained to remand for re-sentencing because, as the State concedes, any discretionary extended sentence imposed must be reconsidered in light of State v. Pierce, 188 N.J 155 (2006), which was decided after the trial court imposed sentence in this case.*fn1

I.

The charges in this case arose from the beating and stabbing of seventeen-year-old Corey Williams, followed by an altercation in the courtyard of an Elizabeth apartment complex during which two children were wounded by gunfire.

Immediately before jury selection on June 19, 2006, defendant asked the judge to adjourn the trial so that he could obtain a new attorney. He indicated that he had several disagreements with his attorney, who was a Public Defender assigned counsel. These disagreements included his belief that defense counsel should have filed a motion to dismiss the indictment because the State relied on hearsay evidence in its Grand Jury presentation, and that counsel should have asked for a Wade*fn2 hearing, although defendant admitted that all of the witnesses who identified him were people who had known him for years. Defendant also contended that his attorney had made racial remarks to him and that they had been close to a physical confrontation; his attorney denied both allegations on the record. The judge reviewed in camera several letters defendant had sent to the Public Defender's Office complaining about his counsel, and concluded that they did not provide a basis to grant an adjournment.*fn3 In denying the application, the judge also noted that the case had been scheduled for trial several times before. At no time did defendant ask to represent himself or broach the subject of self-representation.

The following is the most pertinent trial testimony. According to Elizabeth Police Officer David Turner, he was called to an apartment at 350 Irvington Avenue in the Oakwood Plaza housing complex. In the apartment he found Corey Williams, bleeding from wounds to his face and the back of his head. Williams, and the many assembled family members in the apartment, were all "very upset." According to Officer Turner, Williams was "very agitated" and "kept trying to walk around" despite the officer's efforts to keep him seated. Turner described Williams as "very excited and upset at what had happened to him." An ambulance arrived five minutes after Turner was called to the scene, and transported Williams to Trinitas Hospital, approximately a five-minute drive. Shortly after Williams was taken to the emergency room, Turner began interviewing him. Williams was "still very upset." According to Turner, Williams was sitting on the bed "and he was yelling . . . that he got stabbed in the face and he was just very visibly upset about the whole incident."

After hearing the defense objection to Officer Turner's testimony concerning what Williams told him at the hospital, the trial judge issued a lengthy and cogent oral opinion, ruling that the statement was admissible as an excited utterance. She concluded that Williams was seriously injured, had no opportunity to calm down between the time he was injured and the time Officer Turner interviewed him, and in fact was still under the traumatic stress of the injury when he made the statement. The statement was made a short time after the traumatic incident, and the only question Turner asked Williams was "what happened?"

Following the judge's ruling, Turner testified that Williams responded that he had initially gotten into a fight with defendant and two other people on Broad Street. When Williams returned to his apartment building, three men "jumped him," and beat and stabbed him. According to Williams' statement, defendant was one of the three men and had a knife. Turner also testified that as he was responding to the call to Williams' apartment after the attack, he saw defendant and another man leaving that apartment building.

In addition to finding the wounded Williams at the apartment complex, police found two children who had suffered gunshot wounds. They also found bullets and shell casings on the ground outside the buildings. According to expert testimony, these came from a forty caliber semi-automatic handgun.

Two witnesses testified that they saw defendant with a handgun outside the apartment building. Kim Colbert had known defendant for about ten years. On the afternoon of April 8, 2005, Colbert was visiting her sister at the Oakwood Plaza apartment complex. Between 5:30 and 6:00 p.m. Colbert heard "about four" gunshots. She immediately "jumped up" and looked out the window and saw three men outside, including defendant, who was wearing a white t-shirt. According to Colbert, defendant was "holding a black gun" and pointing it with his arm outstretched. She did not see defendant give the gun to anyone else. Colbert ran outside because her children were out in the courtyard. On the way out of the building, she passed defendant going in. Colbert did not find her children outside and returned to her sister's apartment. Shortly after she returned, defendant brought a young girl to the sister's door and said to Colbert, "[h]ere is your daughter." When Colbert replied that the child was not hers, defendant responded, "I'm sorry, I'm sorry, I'm sorry." Colbert was absolutely certain of her identification, since she had known defendant for many years.

The jury also heard testimony from Lakia Patterson, the mother of one of the children who was shot. She testified that she was in her apartment, on her way out the door when she heard gunshots. She saw her son outside, trying to get into the building. As Patterson was trying to open the front door, she saw defendant standing outside holding a gun which he pointed toward the doorway. Patterson was sure she recognized defendant because she had known him for a long time. She heard gunshots at the same time that she saw defendant pointing the gun in her son's direction. Patterson later clarified that she saw defendant "shooting and running" at the same time. She also saw Antoine Adams, previously identified as Williams' uncle, trying to enter the building. Patterson opened the door, dragged her son inside, and saw that he was wounded. After she was shown her prior statement to the police, Patterson also testified to her recollection that she saw Adams holding a gun, pointed down. She did not see Adams point the gun at anyone or fire it. During Patterson's testimony, the jury was also shown a videotape from a security camera which showed the children and Adams at the door to the building at the time of the shooting. She testified that defendant was wearing a white t-shirt.

When called as a trial witness, the stabbing victim, Corey Williams, confirmed that he had been assaulted but claimed to have no recollection of who assaulted him.*fn4 He also claimed that he did not remember making any statements to the police. He did, however, identify a seven-page written statement that he gave to police on April 9, 2005 as being his "voluntary statement" and he identified his initials on every page of the statement. He claimed he did not remember giving the statement. He testified that its substance was not true and that he had not actually given the statement voluntarily.

At the State's request, the trial judge excused the jury and conducted a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), to determine whether to permit the State to offer the document as a prior inconsistent statement pursuant to N.J.R.E. 803(a)(1). During the hearing, Williams was confronted with the statement, in which he specifically identified defendant as the person who stabbed him. Williams testified that he was taking pain medication during the police interview and claimed to have no memory of who stabbed him. He also testified that he had no memory of making the statement to the police. In response to the judge's questions, he clarified that he did not know the statement to be false; he simply claimed to have no present memory of the attack. However, on answering additional questions, he then contended that the statement was false in accusing defendant of the stabbing.

At the Gross hearing, the State also presented testimony from Detective Thomas Koczur, who first interviewed Williams at the hospital on the night of the stabbing. According to Koczur, Williams did not appear to be under the influence of alcohol or narcotics at that time. On that evening, Williams was able to identify photographs of the three assailants and to describe the role each assailant played in the attack. He also agreed to come to the police station the next day to give a statement. When Williams appeared for the interview, he was not in custody or a suspect. He "was very cooperative" and did not appear to be under the influence of pain medications or alcohol. Koczur denied that Williams was placed under any pressure to make the statement. Williams was "very sure" that defendant stabbed him and expressed his hope that the police would "get these guys."

In an oral opinion placed on the record on June 26, 2006, the trial judge concluded that the statement was admissible. Relying on State v. Brown, 138 N.J. 481, 542 (1994), she reasoned that the statement was inconsistent with Williams' trial testimony concerning his inability to recall making the statement or the facts contained therein. As in Brown, she concluded that "the lapse of memory was feigned."

[W]ell before [Williams'] interview with Det. Koczur before he received any medication when he first arrived at the hospital he was seen by . . . Officer Turner and provided information at a time he was angry, he was upset, when . . . the only influence he was under was the fact he had just been the subject of a stabbing. He then gave consistent information to Det.

Koczur at the hospital and all the details are consistent with the statement given to Det. Turner and the details of the written statement are also consistent.

So at that time period his perception of events, his description of events, his ability to articulate the events that he recalled are all consistent and all suggest that he did in fact have a clear perception and recollection of the events at the time.

The judge also considered that the hospital records did not reflect that Williams received pain medication other than Motrin. The judge found that Williams' trial testimony concerning his lack of recollection was "simply not credible, not credible at all." She concluded that the statement was inconsistent with Williams' trial testimony. Based on an exhaustive review of the applicable Gross factors, the judge also concluded that Williams had no motive to fabricate his statement, that the statement was reliable, and admissible.

Before the jury, Williams was then confronted with his April 9, 2005 statement, in which he explicitly described the attack in which three men confronted him and defendant stabbed him:

[A]s they were jumping me one of them tried to throw me a choke-hold and then that's when I heard the click click noise which was a knife. . . He [defendant] grabbed my dreads and pulled me toward him and tried to stab me two times. Then he got mad and that's when he sliced me across the face.

In the statement, defendant also identified photographs of defendant as the person who stabbed him, Lorenzo Keets as the man who punched and choked him, and Yvon Pyrus as the man who restrained Williams as defendant stabbed him. However, at trial, Williams insisted that apart from remembering that he got stabbed, he could not recall who attacked him or any details of the attack. He admitted he had known defendant, Pyrus and Keets for a number of years.

Detective Koczur's testimony before the jury was consistent with his testimony at the Gross hearing. He confirmed that he interviewed Williams in the emergency room, and that Williams told him that defendant stabbed him. Detective Koczur also read to the jury the entire text of Williams' seven-page statement implicating defendant.

The State next presented testimony from Yvon Pyrus, one of the men involved in the attack on Williams. On April 8, 2005, Pyrus, Lorenzo Keets and their friend "Chris" went to 350 Irvington Avenue in the Oakwood Plaza complex to see "a female," who turned out not to be home at the time. When Pyrus and his friends left the building, they encountered Williams and a group of other men who started a fight with them and beat up Chris and Lorenzo. After this incident, the three friends went to see defendant because Lorenzo had said "this was Khalil [defendant's] neighborhood so Khalil had to come outside and handle the situation." Defendant told them that "if anybody was seen that was in the fight, he was going to cut them in the face." Defendant and the three friends left defendant's apartment and "[w]ent looking for revenge." On the way to Oakwood Plaza the group met Antoine Adams, who started arguing with defendant in front of 350 Irvington.

While the group was standing outside, Williams left the building and then returned. The four men followed him in, and Lorenzo told defendant that Williams was one of the men involved in the earlier fight. Defendant asked Williams if he had been involved, and Williams said he had. According to Pyrus, at that point, defendant and Lorenzo started beating Williams. Pyrus saw defendant punching Williams and "cutting him in his face" with a weapon that looked like a scalpel. After Williams collapsed, the assailants fled, bumping into Cephus Minter and Antoine Adams on the way out the door. According to Pyrus, Adams was Williams' uncle. Adams and Minter chased Pyrus and his friends but the group "lost them" and returned to defendant's home. When defendant entered the apartment, Pyrus observed that he was carrying a gun. The group left the apartment, with defendant carrying the gun in his waistband, looking for Adams, whom they found back at Oakwood Plaza. Adams swung a belt at defendant who ducked. Defendant then "[b]acked up and started firing" the gun in the direction of the apartment building at 200 Parker Road, where Adams and his companions were standing. After firing multiple shots, defendant handed the gun to Pyrus and told him to shoot Adams, however, when Pyrus fired, he discovered that the gun was out of ammunition. Pyrus identified the gun as a semi-automatic "9 millimeter or a .40 caliber." According to Pyrus, defendant's girlfriend was not present at the scene of the shooting; rather, after the shooting, defendant telephoned her from the scene to ask for a ride.

Pyrus admitted that he had accepted a plea bargain pursuant to which he would serve seven years, with an eighty-five percent parole bar, in order to avoid a potential fifty-five year prison term. He also admitted that in an earlier statement to police he had told them that Adams had a gun. In his trial testimony, he insisted that Adams did not have a gun. He also testified that defendant was wearing a black shirt at the time he shot at Adams, contrary to previously-elicited testimony that defendant's shirt was white.

The State called Assistant Prosecutor Regina Caulfield to testify concerning the plea agreement with Pyrus. She explained that Pyrus was extended a plea offer conditioned on his "[t]ruthful testimony at trial." Defense counsel did not object to the reference to truthful testimony. Caulfield was then thoroughly cross-examined with the aim of showing that Pyrus was biased toward giving testimony favorable to the State in order to avoid a potentially very lengthy sentence.

On June 27, 2008, in the middle of the trial, defense counsel alerted the court that he might make an application to have the trial continued to permit defendant's girlfriend Jacinta Bryant to testify.*fn5 Counsel stated that Bryant "had heart surgery either yesterday or today" and that the defense might make a motion for a continuance "if it turns out we believe she is an essential witness." By this point in the trial, one juror had already been dismissed due to a knee injury and a second juror had advised the judge that he was reluctant to continue serving because his employer was not paying him during his jury service. On the next trial day, June 28, 2008, defense counsel announced that he had "good news" in that Bryant would be available to testify the next morning. He asserted she could not be available on June 28 because of flooding near her home, but that he would arrange transportation for her the next day.

After the State rested, the defense called a series of witnesses to testify that defendant was not involved in the attack on Williams or in the later shooting. On June 27, Michael Watson testified that on the day of the assault, he and his cousin Williams were in the hallway of the apartment building selling drugs when Pyrus and a group of other men confronted them and got into a fight during which Williams was cut. According to Watson, defendant was not present. On cross-examination, Watson admitted that although he knew defendant had been arrested, he did not go to the police and tell them that defendant was not involved in the assault on Williams. Watson also admitted speaking to Prosecutor's Detective Colacitti shortly before the trial, on June 15, 2006, and telling the detective that he "had absolutely no firsthand knowledge of what happened at Oakwood Plaza on April 8th of 2005." Watson also testified that he had been speaking to defendant every day for the past two weeks prior to the trial, although by agreement of counsel the jury was not told that both men were then incarcerated together at the county jail.

Jamila Anthony testified that she lived in Building 200 in Oakwood Plaza and, from her third-story apartment window, witnessed a "big fight" on April 8, 2005. According to Anthony, she saw a confrontation between defendant and Antoine Adams, each of whom was accompanied by several other men. After defendant and Adams got into a fistfight, someone else who was behind defendant "started shooting." Once the shooting started, she saw defendant and the shooter running together toward building 220. Anthony ran down to the courtyard to look for her own children and saw two other children who were bleeding. On cross-examination she admitted that although she had known defendant most of her life, she did not come forward to inform police that defendant was innocent of the shooting. She first told her version to defendant's investigator a few weeks before the trial.

On June 29, 2006, the defense presented testimony from Vernell Nelson, who lived in a fourth-floor apartment facing the courtyard where the shooting took place. According to Nelson she was looking out her window when she saw three men coming out of building 220. She saw "the second guy . . . pull something out of his waist band and then just start[] pointing, shooting." Nelson knew defendant. He was one of the three men she saw, but he was not the shooter. Nelson said when the shooting started, she backed away from the window because she "didn't want to see anything" lest she be called as a witness. She testified that she had five children and was "scared." On cross-examination, she was confronted with pictures of the courtyard showing that the view from her window would have been blocked by several trees. She claimed she could see through the branches. Nelson claimed she did not see any confrontation before the shooter began firing. She admitted she waited until the day before her testimony to come forward with her version of events, and that defendant's girlfriend Jacinta Bryant was her aunt.

Also on June 29, 2006, the defense presented testimony from Kemar Williams. According to Kemar, on April 8, 2005, he was hanging out with friends outside his aunt's apartment in building 400 at Oakwood Plaza, when he saw people running toward building 200. He followed the crowd and saw "a big commotion with Khalil Patrick and a couple guys trying to swing on him." According to Kemar, during the fray, "Yvon" pulled a gun from his waistband "and started shooting." Kemar claimed he did not report the shooting because he believed the complex's security cameras would have recorded the incident. On cross-examination, without objection, Kemar admitted to multiple prior drug convictions, including one resulting in a State prison sentence. He also admitted that when he was shown a series of photographs, he identified the wrong person as the shooter, although he claimed to know Yvon well. Kemar also admitted that although he knew defendant was accused of the shooting, he never went to the police to clear defendant's name, and he waited until the day before his trial testimony "to tell this story" for the first time.

After Kemar's testimony concluded, defense counsel represented to the court that the defense wanted to call Jacinta Bryant as a witness but that Bryant was not available. Counsel represented that, if called, Bryant would testify that Pyrus was the shooter. Contrary to counsel's prior statement to the court that Bryant would be available that morning, counsel represented that while the flooding near her house had cleared up, Bryant now claimed she could not appear for another week because she was "recovering from the angioplasty" performed the prior week. No medical evidence was presented to substantiate that claim.

The judge denied the application for a continuance, based on her conclusion that Bryant's explanation for her unavailability was suspect, and her testimony would at best be cumulative and duplicative of the other defense witnesses. Further, "there is an obvious area for cross-examination impeaching her credibility because of the personal interest she would have in Mr. Patrick's welfare in this case." The judge also noted that at least one juror had indicated she was having "an unanticipated substantial hardship in continuing her jury service" and there was a need to conclude the trial.

After this ruling, defense counsel placed on the record several issues. First, counsel explained his litigation-strategy reasons for declining defendant's request to call Antoine Adams as a witness. Second, counsel and the court addressed defendant's criticism of his counsel for not objecting to a question addressed to Watson about the time he spent with defendant. The prosecutor reminded the court that counsel had intentionally avoided referring to the fact that the two men were in jail together and limited the questions to whether they had spent time together. Defense counsel added that

[S]ometimes when you object to these things, it highlights the jury's attention as to what the question was and the answer was. If it is subtle enough, it may go over their heads anyway, which is my approach. Let it slide because the objection means they concentrate on what the question and answer was and gives it sort of an enhanced position . . .

The judge stated on the record her recollection that Watson was not asked about spending time in jail with defendant. However, she reasoned that it was unavoidably necessary to allow the prosecutor to question Watson about the time he spent with defendant just prior to trial, in order to impeach his credibility with respect to a version of events Watson first asserted to authorities just before his testimony.

Third, defense counsel, defendant and the judge reviewed on the record an incident that had occurred "earlier this week where the jury was brought in while Mr. Patrick was still handcuffed." The judge set forth at length her conclusion that the jurors had not seen the handcuffs, because defendant was wearing a long-sleeved shirt, an alert sheriff's officer had directed defendant to turn his back to the jurors, and the judge had immediately sent the jurors out for coffee before they even reached the jury box. Moreover, during this colloquy with counsel and defendant, the judge offered to give the jury a limiting or curative instruction. Defense counsel indicated it would be his preference "not to give an instruction," and, after consulting with his counsel, defendant agreed on the record that he would abide by his counsel's advice.

In both his opening and closing statements, defense counsel stressed to the jury that Yvon Pyrus had agreed to a plea bargain and was only testifying to avoid significant prison time. As counsel argued in closing, "he probably would testify against his mother if it meant avoiding 50 years and only doing seven or eight years." In her summation, the prosecutor made no mention of Caulfield's testimony that Pyrus agreed to give "[t]ruthful testimony." Her only mention of the plea bargain was to try to explain why the State made a reasonable, and not unduly generous, offer. Additionally, she argued that Pyrus was credible because he incriminated himself in the attempt to shoot Adams, albeit with an empty gun, at a point when no one else was accusing him of being the shooter.

In her jury charge, the trial judge specifically instructed the jury as to Pyrus' plea bargain and the need to carefully scrutinize his testimony for that reason: "[Y]ou may consider whether he has a special interest in the outcome of this case and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward." She also instructed the jury with respect to the State's alternative contention that if Pyrus was the shooter, defendant acted as his accomplice, and she explained accomplice liability. Defense counsel did not object to the charge or request any other charge with respect to Pyrus's testimony.

II.

On this appeal, defendant raises the following points for our consideration:

POINT I: DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BECAUSE THE STATE INTRODUCED A PRIOR INCONSISTENT STATEMENT OF ITS OWN WITNESS WITHOUT SATISFYING THE REQUIREMENTS OF N.J.R.E. 803(A)(1).

POINT II: THE COURT ERRED IN ADMITTING THE VICTIM'S STATEMENTS TO THE POLICE UNDER THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE.

POINT III: THE COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO REPRESENT HIMSELF WHEN IT REFUSED TO GRANT AN ADJOURNMENT TO ALLOW NEW COUNSEL TO BE SUBSTITUTED AND FAILED TO INFORM DEFENDANT OF HIS RIGHT TO DISPENSE WITH COUNSEL TO WHOM HE OBJECTED AND TO REPRESENT HIMSELF. POINT IV: DEFENDANT WAS DENIED HIS RIGHT TO PRESENT A DEFENSE WHEN THE COURT REFUSED TO GRANT AN ADJOURNMENT SO THAT A CRITICAL DEFENSE WITNESS COULD TESTIFY.

POINT V: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO A AN AGGREGATE TERM OF FIFTY-FIVE YEARS BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

POINT VI: DEFENDANT'S SENTENCE ON COUNT ONE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING PURSUANT TO STATE V. PIERCE, 188 N.J. 155 (2006).

POINT VII: THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).

Defendant raises the following additional points in a pro se supplemental brief:

POINT I: DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE JUDGE ALLOWED THE JURY TO OBSERVE DEFENDANT IN HANDCUFFS.

POINT II: THE PROSECUTION ELICITED INFORMATION DURING THE INTRODUCTION OF CO-DEFENDANT PYRUS'S PLEA AGREEMENT THAT WAS SO PREJUDICIAL AS TO DENY DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH & FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 9 & 10 OF THE NEW JERSEY CONSTITUTION.

A. The Clause That "Truthful Testimony At Trial And Full Cooperation With State And Sworn Statements" Improperly Bolstered The Testimony Of Co-Defendant Yvon Pyrus.

B. In Lieu Of A Proper Limiting Instruction, Testimony Concerning Various Aspects Of Pyrus's Plea Bargain Allowed The Jury To Consider The Plea As Substantive Evidence Of Defendant's Guilt.

POINT III: APPELLANT WAS DENIED A FAIR TRIAL BY AN INADEQUATE INSTRUCTION REQUIRING JURORS TO SCRUTINIZE THE TESTIMONY OF YVON PYRUS UNDER THE "ACCOMPLICE RULE."

POINT IV: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PERCEIVE OR PRESERVE CONSTITUTIONAL ERRORS FOR APPEAL.

POINT V: THE CUMULATIVE EFFECT OF THE ERRORS, COMBINED WITH TRIAL COUNSEL'S OMISSIONS, DEPRIVED APPELLANT OF A FAIR TRIAL.

Defendant's pro se points IV and V are not properly raised on direct appeal and will not be addressed here, without prejudice to his filing a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419-20 (App. Div. 1991). Having read the entire trial transcript, we conclude that except for the Pierce sentencing issue, as to which the State concedes a remand is required, all of defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

We find no merit in defendant's challenges to the trial judge's evidentiary rulings. The judge properly held a Gross hearing to determine the admissibility of Williams' prior inconsistent statement about the stabbing. See Gross, supra, 121 N.J. at 10, 17; N.J.R.E. 803 (a)(1). Even on a cold record, Williams' testimony concerning his alleged lack of memory, and his effort to recant his statement to police, was utterly incredible. We affirm the judge's ruling as to the statement's admissibility for the reasons stated in the judge's cogent oral opinion on that issue. The judge likewise correctly held that Williams' statement to Officer Turner was an excited utterance, N.J.R.E. 803(c)(2), for the reasons stated in her well-reasoned oral opinion.

We find no abuse of discretion or other error in the trial judge's refusal to adjourn the trial a fourth time in order to grant defendant's last-minute request to retain new counsel. See State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985). Defendant's disagreements with his assigned counsel concerned defendant's desire to have counsel file clearly non-meritorious motions. Moreover, since defendant gave no indication that he wanted to represent himself, the court was not obligated to sua sponte advise him of that option. See State v. Taylor, 350 N.J. Super. 20, 41-42 (App. Div.), certif. denied, 174 N.J. 190 (2002). In fact, later on in the trial, defendant expressed confidence in his assigned counsel and agreed to be guided by his advice.

We likewise find no abuse of discretion in the trial judge's refusal to adjourn the trial for a week so that the defense could produce Jacinta Bryant to testify. Bryant's alleged reasons for her unavailability were suspect and not documented with any evidence of her alleged medical condition. We also agree with the trial judge's conclusion that Bryant's testimony would at best have been duplicative and cumulative.

Finally, we find no basis to disturb the verdict because on one occasion, the Sheriff's officer was unable to remove defendant's handcuffs before jurors began entering the courtroom. This was not a case where the court ordered that defendant be handcuffed during the trial. See State v. Artwell, 177 N.J. 526, 534-35 (2003). To the contrary, the record reflects that counsel and the court were diligent to be sure the handcuffs were always removed before the jury arrived. We defer to the trial judge's factual findings, placed on the record, that during this incident the jury was directed out of the courtroom before they reached a vantage point where they might have seen the handcuffs, and that in any event defendant was wearing long sleeves and was facing away from them. We also note defendant declined the judge's offer to give the jury a curative instruction on the off-chance that any juror might have seen the handcuffs.

Defendant's remaining contentions concerning his conviction do not warrant discussion here. R. 2:11-3(e)(2). As noted earlier, the State concedes that a remand is required with respect to the discretionary extended term so that the court may consider the entire range of available sentences from the bottom of the ordinary term to the top of the extended term. See Pierce, supra, 188 N.J. at 169. We find no abuse of discretion in any other aspect of the sentence, see State v. Roth, 95 N.J. 334, 363-64 (1984), including the imposition of consecutive sentences, which we agree was justified under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).

Affirmed in part, remanded in part.


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