November 12, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAVONTA BASS,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-08-1051 and 04-08-1052.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2008
Before Judges Parker, Yannotti and LeWinn.
Defendant was convicted of aggravated assault and certain weapons offenses. He appeals from his convictions and the sentences imposed. For the reasons that follow, we affirm.
Defendant was charged under Union County Indictment No. 04-08-1051 with attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); aggravated assault, N.J.S.A. 2C:12-1b(2); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a handgun without a permit, N.J.S.A. 2C: 39-5b. In addition, defendant was charged under Union County Indictment No. 04-08-1052 with unlawful possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b. Defendant was tried before a jury, although the charges in the two indictments were bifurcated.
At trial, the State presented evidence from which the jury could reasonably find the following facts. On the evening of May 13, 2004, Darius Julius attended a wake in Rahway with his cousins Alicia and Antoine Smart. They left Rahway at about 8:00 p.m. and drove back to Linden in Alicia's car. Alicia was driving. Julius was in the front passenger seat and Antoine was seated in the back. Alicia drove down St. George Avenue, turned left on Lincoln Street, and proceeded towards her home on Cleveland Street.
Defendant was standing with his girlfriend Tamara Hodge near Tamara's gold car at the intersection of Lincoln and Cleveland Streets. Hodge was in the car with her two young daughters, along with her half-sisters, Iesha and Tynesha Starling.
Alicia turned onto Cleveland Street and parked the car across from her house. She got out of the car and went inside to change her clothes. Shortly thereafter, Alicia returned to the car. Hodge drove her car past the driver's side of Alicia's car, and turned right onto McCandless Street.
Alicia went to put her car in reverse so that she could turn around and head down Lincoln Street. Defendant was dressed in dark clothing. He had a silver gun. He ran up to Alicia's car and started shooting at the passenger side. Although Julius did not realize it at first, he had been shot in his stomach and his left side.
Defendant ran towards McCandless Street and got into the back seat of Hodge's car. Defendant put the gun down the front of his pants. Hodge drove down St. George, over the railroad tracks to Charles Street. Defendant handed off the gun to a person on a bicycle. Hodge then drove to her home on Catherine Street in Elizabeth. The next day, Iesha told defendant that he had gotten her and Tynesha "in a mess." Defendant replied, "Come on, Iesha, this is my life you're talking about."
After the shooting, Alicia drove to Julius' home on East Curtis Street. Julius exited the car on his own power but collapsed in pain. The police responded to the scene. Julius was taken by ambulance to the hospital where an emergency exploratory laparotomy was performed. The procedure revealed extensive bleeding in Julius' abdominal cavity as well as wounds to his liver, diaphragm, stomach and colon.
Detectives from the Linden Police Department visited Julius in his hospital room on May 20, 2004. Julius identified defendant as the shooter. On May 24, 2004, Julius provided the detectives with a statement that was recorded. Julius again identified defendant as the shooter. A detective transcribed the audiotape of Julius' statement. On May 25, 2004, Julius went to police headquarters and, after he made certain corrections and additions to the statement, he signed it.
Defendant was found not guilty of attempted murder but guilty on the other charges. Defendant appeals and raises the following issues for our consideration:
THE TRIAL COURT'S EXCLUSION OF EXCULPATORY EVIDENCE, INDICATING THAT AN EYEWITNESS TO THE SHOOTING MADE A PHOTOGRAPHIC IDENTIFICATION OF SOMEONE OTHER THAN DEFENDANT AS THE GUNMAN, DEPRIVED DEFENDANT OF THE RIGHT TO PRESENT A DEFENSE AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMEND., XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
THE TRIAL JUDGE'S REFUSAL TO PROVIDE A "FALSE IN ONE, FALSE IN ALL" JURY INSTRUCTION ON CREDIBILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
THE UNNECESSARY INTRODUCTION OF THE UNSANITIZED DETAILS OF DEFENDANT'S PRIOR CONVICTIONS TO PROVE HIS FORMER FELON STATUS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I. PARS. 1, 9, 10 (Not Raised Below).
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We turn first to defendant's contention that the trial judge erred by precluding the defense from eliciting testimony from Detective Frank Leporino that an eyewitness to the shooting, Shakira Snead, had reviewed an array of six photographs and identified someone other than defendant as the gunman. Defendant argues that the exclusion of this evidence deprived him of his constitutional rights to present a defense and to a fair trial.
The judge first considered defendant's application to permit the admission of testimony regarding Snead's identification at a hearing outside the presence of the jury that took place on August 15, 2005. At the hearing, defendant's investigator, Jose Perez, testified that he attempted to serve a subpoena upon Snead at her residence on McCandless Street in Linden. Snead's mother informed Perez that her daughter was not at home and she feared for her safety. Perez was told that Snead's father would contact the prosecutor's office about the matter. Perez testified he did not thereafter make any further attempt to locate Snead.
Defense counsel conceded that she knew "[f]or quite some time" that Snead was a potential witness who could be helpful to the defense. Counsel argued that defendant's due process rights outweighed any interest that the State might have in excluding the evidence. The judge denied defendant's application. The judge stated that:
[t]here's been no due diligence here to procure that witness. We have some veiled reference that the witness is out of state. There's been no attempt to contact anybody at all to find out where . . . she might be. You can't just say that merely because [the] defense wants it the hearsay rules [do not] apply . . . . The hearsay rules may be relaxed on occasion for a need if there's been a good showing that [the] defense has done everything possible to procure the necessary attendance of the witness. That's not the case here. Your request is denied.
On August 16, 2005, after defendant rested his case, the judge permitted defendant to present additional testimony to complete the record on this issue. Perez testified again. He stated that prior to serving the subpoena at Snead's residence, he had spoken to Snead. Perez said he had informed Snead that she was a witness and defendant wanted her to testify. Snead did not give Perez any indication that she would not be available for trial.
Perez conceded, however, that he did not ask Snead to maintain contact with him or provide any change of address or phone number. Perez said that, after the hearing on the previous day, he placed two phone calls to Snead. Snead had not returned the calls. Perez also said that he did not find out where Snead went to school or whether she had any friends in the area.
The judge reaffirmed his earlier ruling and again found that defendant had not presented sufficient evidence to establish due diligence to obtain Snead's presence at trial. The judge stated that "due process does not mean that [defense counsel] is relieved of [the] responsibility for conducting a decent investigation if you want to procure a person's testimony."
Defendant raised the issue again on his motion for a new trial. The judge denied the motion and stated that defendant failed to establish a basis for the introduction of Snead's statements. The judge observed that there was no record before me sufficient to make a determination [that the defense] made a valid effort to find this alleged person. . . How about going to the post office and saying is there any record of where the person's next mailing address is[?] Nothing of that [nature] was done.
Clearly, the testimony regarding Snead's identification was not admissible under our Rules of Evidence. Her statements were hearsay as defined in N.J.R.E. 801(c) because they were out-of-court declarations that were offered as evidence "to prove the truth of the matter asserted." Ibid. Such hearsay "is not admissible except as provided by [the rules of evidence] or by other law." N.J.R.E. 802. Here, none of the exceptions to the hearsay rule applied. N.J.R.E. 803(c); N.J.R.E. 804. Defendant argues, however, that he had a constitutional right to introduce evidence that Snead had identified someone else as the perpetrator of the shooting.
"The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed. 2d 297, 308 (1973). Nevertheless, a defendant "'does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under the standard rules of evidence.'" Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 2017, 135 L.Ed. 2d 361, 367 (1996) (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L.Ed. 2d 798, 811 (1988)).
Indeed, defendant's right to present relevant evidence "'may in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711, 97 L.Ed. 2d 37, 49 (1987) (quoting Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed. 2d at 309). The restrictions on the admission of relevant evidence may not, however, be "arbitrary or disproportionate to the purposes they are designed to serve." Rock, supra, 483 U.S. at 56, 107 S.Ct. at 2711, 97 L.Ed. 2d at 49.
In this matter, the testimony regarding Snead's identification was not permitted because it was inadmissible hearsay. Such evidence is typically excluded because "though unquestionably relevant, [it] is deemed insufficiently reliable." Egelhoff, supra, 518 U.S. at 42, 116 S.Ct. at 2017, 135 L.Ed. 2d at 367-68.
We are convinced that the exclusion of the evidence was for "'legitimate interests in the criminal trial process.'" Rock, supra, 483 U.S. at 55, 107 S.Ct. at 2711, 97 L.Ed. 2d at 49 (quoting Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed. 2d at 309). Like all inadmissible hearsay, Snead's identification was of questionable reliability. Because Snead failed to appear at the trial, the State was precluded from testing the reliability of the statements through cross-examination. Moreover, defendant failed to make a diligent effort to obtain Snead's presence at the trial. In our view, the application of the hearsay rules under these circumstances was not "arbitrary or disproportionate to the purposes they are designed to serve." Rock, supra, 483 U.S. at 56, 107 S.Ct. at 2711, 97 L.Ed. 2d at 49.
In support of his argument, defendant relies upon State v. James, 144 N.J. 538 (1996). In that matter, two assailants stopped a car. Id. at 544. One of the assailants approached on the driver's side, pointed a gun at the driver and ordered him to exit the vehicle. Ibid. The driver got out and the person with the gun entered the car on the driver's side. Ibid. The other assailant entered the car on the passenger side and they drove off. Ibid.
Shortly thereafter, the victim went to police headquarters and identified the photos of Luis Vincent and Malcolm Johnson, indicating that they were the perpetrators of the carjacking. Ibid. Although Vincent did not admit involvement in the incident, he said that he had been with the defendant. Id. at 544-45. Some time later, the victim told the police that he was not certain about his identification of Johnson but he "was still confident about the accuracy of his selection of Vincent's photograph." Id. at 545.
About two weeks later, the victim returned to the police station and he was seated near the defendant. Ibid. The police told the victim that they had arrested another suspect and he was in the detective bureau. Ibid. The police presented the victim with ten photographs and he selected the defendant's photo "as the picture of the man who pointed the gun at him and asked him to exit the car." Ibid. The trial court barred the State from presenting evidence of the victim's identification of the defendant, finding that it had been obtained with the use of impermissibly suggestive procedures. Id. at 546.
At the trial, the victim made an in-court identification of Vincent as the person who entered the passenger side of his car. Id. at 547. Defense counsel asked the victim about his description of the perpetrator on the day of the incident and the State objected to the question. Ibid. The trial court ruled that if defense counsel pursued that line of inquiry, the court would permit the State to introduce evidence concerning the victim's subsequent identification of the defendant. Ibid. Defense counsel withdrew her question. Ibid.
The Supreme Court held that the trial judge erred by barring the defendant from eliciting testimony that the victim had identified a person other than defendant. Id. at 560-62. The Court noted that evidence indicating that someone other than the defendant had committed a crime "is highly relevant to the issue of defendant's guilt." Id. at 562. The exclusion of that evidence had infringed upon the defendant's right to present evidence on his own behalf. Ibid. (citing Pettijohn v. Hall, 599 F.2d 476, 480 (1st Cir.), cert. denied, 444 U.S. 946, 100 S.Ct. 308, 62 L.Ed. 2d 315 (1979)). Furthermore, the admission of the evidence of the victim's prior misidentification did not open the door to admission of the previously suppressed identification. Id. at 562-63.
In our judgment, defendant's reliance upon James is misplaced. There, the victim was present at the trial. His prior statements identifying another person as the perpetrator were admissible under the rules of evidence. The trial judge had erroneously forced the "defendant to choose between his right of confrontation and his right to have an unreliable identification suppressed." Id. at 560. In this case, however, Snead was not present at the trial, Snead's prior declarations were inadmissible hearsay, and defendant was never required to make the sort of choice that confronted the defendant in James.
Next, defendant argues that the judge erred by refusing to provide the jury with the model "False in One -- False in All" charge. Again, we disagree.
"Appropriate charges expounding the law for the jury's guidance and instruction are essential for a fair trial." State v. LaBrutto, 114 N.J. 187, 203-04 (1989) (citing State v. Collier, 90 N.J. 117, 122 (1982); State v. Greene, 86 N.J. 281, 287 (1981)). A defendant is only entitled "to a charge that is accurate and that does not, on the whole, contain prejudicial error." Id. at 204. We must review the charge in its entirety to determine whether it is ambiguous, misleading, or fails to accurately set forth "the controlling legal principles relevant to the facts of the case." Ibid. (citations omitted).
Here, the judge provided the jury with extensive instructions to guide it in its credibility determinations. The judge informed the jury concerning the use of prior inconsistent statements, noting that Iesha Starling, Darius Julius, Alicia Smart and Antoine Smart may have made such statements. The judge pointed out the factors that the jury could consider in determining whether the witnesses were credible. The judge also detailed the many factors that the jury could consider in weighing the credibility of Julius' testimony and his prior statements.
The judge further noted that in determining credibility the jury could consider the demeanor of the witness, whether the witness had an interest in the outcome of the case, and whether the witness had a bias for or against either party. The jury could also consider whether the testimony was reasonable. The judge added:
So each of you must decide credibility for [yourself], but you must decide it after talking about it . . . with each other in [the jury] room. You have the power to accept [a] person [as] totally credible, to reject [a] person as [a] total bald face liar, [and find that] nothing is worthy of belief or to decide [that it is true].
We are convinced that the judge's charge on credibility was thorough, fair and accurate and did not in any way prejudice defendant. Had the judge provided the jury with the "False in One -- False in All" charge, he would have told the jury that:
If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it. [Model Jury Charge (Criminal), "False in One -- False in All" (1991).]
The judge's instructions provided the jury with the substantial equivalent of the model charge.
We therefore conclude that the judge did not err by refusing to employ the specific language of the model "False in One-False in All" charge.
We turn to defendant's contention, raised for the first time on appeal, that the State unnecessarily introduced unsanitized details of defendant's prior convictions to prove his status as a previously convicted felon. In our judgment, this contention is entirely without merit.
As we stated previously, the charges in the two indictments were bifurcated and tried separately before a single jury. After the jury had returned its verdict on the charges in Indictment No. 04-08-1051, the jury heard the evidence on the charge in Indictment No. 04-08-1052, which alleged the unlawful possession of a firearm by a previously convicted person, contrary to N.J.S.A. 2C:39-7b. Evidence regarding defendant's prior convictions was presented in the second phase of the trial to establish that defendant possessed a weapon in violation of N.J.S.A. 2C:39-7b.
Defendant argues that the admission of unsanitized details concerning five prior convictions was inconsistent with the procedures prescribed by State v. Brown, 180 N.J. 572 (2004). In Brown, the defendant was tried solely on a charge of possession of a weapon by a convicted person. Id. at 574. The trial judge did not bifurcate the trial, which would have allowed the jury to determine whether the defendant possessed the weapon without regard to the defendant's prior criminal record, and then determine whether defendant had previously been convicted of an offense enumerated in N.J.S.A. 2C:39-7b. Ibid.
The Court in Brown held that bifurcation was not required when the sole offense tried is the alleged possession of a weapon by a convicted felon. Id. at 582. The Court stated, however, that in such a case, the trial court should give the jury appropriate limiting instructions "to reduce the risk of undue prejudice tainting the jury's work." Id. at 584. The Court added that "any potential for prejudice can be ameliorated by the sanitization of the predicate offense." Ibid.
The Court stated that if the defendant stipulates that he committed an offense enumerated in N.J.S.A. 2C:39-7b, "the jury need be instructed only that defendant was convicted of a predicate offense." Id. at 585. "If the defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the evidence to the date of the judgment." Ibid.
Here, there was no mention of defendant's prior criminal convictions in the first phase of the trial which dealt with the charges in Indictment No. 04-08-1051. Thus, defendant's argument has no bearing upon those convictions. Furthermore, defendant refused to stipulate to his prior convictions in the second phase of the trial.
The State therefore produced and read into the record redacted judgments of conviction, which established that defendant had previously been convicted of possession of a controlled dangerous substance (CDS) with intent to distribute on or within 1000 feet of school property; aggravated assault; possession of a CDS with intent to distribute on or within 1000 feet of school property; and possession of cocaine with intent to distribute the same. Defendant did not object to the introduction of this evidence.
Thus, we consider his contention under the plain error standard. R. 2:10-2. We must determine whether the identification of the specific offenses of which defendant had previously been convicted was an error and, if so, whether the error was "clearly capable of producing an unjust result." Ibid.
We are convinced that defendant was not prejudiced by the introduction of evidence that defendant had previously been convicted of certain specific offenses. We note that the jury had already found in the first phase of the trial that defendant was guilty of unlawful possession of a weapon and possession of a weapon for an unlawful purpose. Therefore, it was unlikely that the fact that he had previously been convicted of the aforementioned offenses had any bearing upon the jury's decision on whether defendant possessed a weapon for purposes of the charged violation of N.J.S.A. 2C:39-7b.
Moreover, N.J.S.A. 2C:39-7b makes it a crime for a person to possess a weapon if that person had been convicted of certain specific crimes. In this case, the State merely informed the jury that defendant had previously been convicted of certain offenses and provided the jury with the bare minimum of facts required to prove the charge. The judge did not err by allowing the State to proceed in that manner.
Defendant also argues that his sentences are excessive. The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors.
On the charges in Indictment No. 04-08-1051, the judge sentenced defendant to an extended term of seventeen years of incarceration, pursuant to N.J.S.A. 2C:44-3a, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge merged counts three and four with count five and sentenced defendant to a concurrent term of five years. The judge additionally imposed a consecutive nine-year term, with a five-year period of parole ineligibility, on the weapon possession charge in Indictment No. 04-08-1052. Appropriate fines and penalties also were imposed.
Defendant argues that the judge erred by failing to find a mitigating factor under N.J.S.A. 2C:44-1b(11) (imprisonment will entail excessive hardship to defendant or his dependents). He asserts that the judge failed to give sufficient weight to the statements by defendant's counsel that defendant lived with his mother, his girlfriend and their two children, and defendant provided the family with emotional and financial support. Notwithstanding defendant's contentions to the contrary, these assertions were insufficient to establish that defendant's imprisonment would "entail excessive hardship" to his family. Ibid. (emphasis added).
Defendant also suggests that, in light of the circumstances preceding the shooting and the victim's recovery, the offense did not require a severe punishment. The contention is without sufficient merit to warrant any discussion. R. 2:11-3(e)(2). We note, however, that defendant does not deserve a lesser sentence simply because his victim did not sustain more serious injuries in the shooting.
Defendant additionally argues that the judge should have imposed a concurrent rather than a consecutive sentence for the violation of N.J.S.A. 2C:39-7b. We are satisfied, however, that in imposing the consecutive sentence, the judge properly considered and applied the relevant factors under 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).*fn2 Indeed, "[t]here can be no free crimes, and separate crimes ordinarily deserve separate punishment." State v. Johnson, 309 N.J. Super. 237, 271 (App. Div.), certif. denied, 156 N.J. 387 (1998). The judge properly viewed the violation of N.J.S.A. 2C:39-7b to be a separate and distinct crime warranting separate punishment.
In short, we are satisfied that the sentences imposed here are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).