February 25, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL WEAVER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0628.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2009
Before Judges Wefing and Yannotti.
Defendant was charged under Essex County Indictment No. 05-3-628 with conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b (count one); aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1b (count two); possession of weapons under circumstances not manifestly appropriate for such lawful uses as they may have, N.J.S.A. 2C:39-5d (counts three and five); and possession of weapons with a purpose to use such weapons unlawfully against the person or the property of another, N.J.S.A. 2C:39-4d (counts four and six). Defendant was tried to a jury, which found him guilty on all charges, and the trial court thereafter sentenced him to an aggregate ten-year term of imprisonment with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals, challenging his convictions and the sentences imposed. For the reasons that follow, we affirm.
We briefly summarize the evidence presented at the trial of this matter. In September 2004, Darnell Notis (Notis) was employed by the Newark Housing Authority (NHA) as a repairman and assigned to work in the Seth [Boyden] Housing Complex on Frelinghuysen Avenue. At the time, Notis had been working at the Seth [Boyden] complex for about seven years. Notis testified that on September 29, 2004, he had "words" with a person known as "Face." Notis said that, during this verbal altercation, "Face's" demeanor was "hostile."
The following day, at about 12:45 p.m., Notis was on his way to lunch and he came in contact with "Face," defendant and another person. Notis testified that defendant was wearing a "hoodie." Defendant approached him and said, "where our shit at?" Defendant then struck Notis in the face with a brick. Notis said that he knew defendant because he lived in the housing complex and he was "[p]ositive" that defendant was the person who hit him in the face with the brick.
Notis fell to the ground and "Face" started beating him with a pipe. Notis said that "Face" hit him in the leg, face, head and "all over." He was able to escape and ran to the manager's office to call a police ambulance. According to the police report, Notis was bleeding profusely from the left side of his head.
Notis told the police that defendant and "Face" had hit him.*fn1 Notis was taken in an ambulance to Beth Israel Hospital, where seventeen "staples" were used to treat his injuries. Notis said that there was no doubt in his mind that defendant and "Face" were the persons who attacked him. Notis gave the police defendant's address because he "knew him as a kid that lived down in the projects."
In his direct testimony, Notis said that his jaw and ankle were fractured in the attack. He testified, however, on cross-examination that his jaw was not wired shut and he was told to put an ice pack on it. Notis stated that he did not receive follow-up treatment for his jaw.
Notis also stated that his ankle was not placed in a cast but he was told to stay off of his ankle. He asserted that he could not walk for several days. He said that he did not know the difference between a sprain and a fracture. In response to the court's question, Notis stated that he was not given crutches to use.
Notis was questioned about the statement that he gave to the police on October 6, 2004. Notis admitted that in his statement, he did not say that two of his co-workers were present when he had the verbal altercation with "Face." Notis also admitted that, in his statement, he said that the persons who attacked him had hoods pulled down over their faces.
Notis additionally was questioned about his testimony before the grand jury, in which he said that four people approached him when he was attacked. Notis said that the fourth person was his co-worker. Notis said that he told the police about the co-worker after the attack but did not mention the co- worker in the statement he gave to the police on October 6, 2004.
Darryl Cheeks (Cheeks) of the Newark Police Department testified that in September 2004 he was employed as a special police officer and assigned to the NHA. He responded to the incident in the Seth [Boyden] housing complex on September 30, 2004. Upon arriving at the manager's office, Cheeks observed Notis bleeding from the left side of his head. Cheeks said he saw "a lot of blood" and it was "streaming down." Cheeks spoke to Notis briefly before Notis was taken to the hospital. Notis told him that defendant "did it[.]"
Defendant did not testify nor did he call any witnesses on his own behalf. Defendant moved, however, for a judgment of acquittal on all counts. The trial court denied the motion. As stated previously, the jury found defendant guilty of all of the charges.
In this appeal, defendant raises the following issues for our consideration.
BECAUSE THE STATE FAILED TO PROVE THE CHARGE OF CONSPIRACY BEYOND A REASONABLE DOUBT, THE TRIAL [COURT] ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. (U.S. CONST., Amend. XIV; N.J. CONST. ART. I, PARS. 1, 9, 10)
THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, ¶10. (Not Raised Below.)
THE TRIAL [COURT'S] CHARGE ON ACCOMPLICE LIABILITY WAS INCORRECT IN THAT IT DID NOT EXPLAIN THE PRINCIPLES OF STATE v. BIELKEWICZ, [267 N.J. Super. 520 (App. Div. 1993)] PROPERLY AND WAS THEREFORE INSUFFICIENTLY TAILORED TO THE FACTS OF THE CASE, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We first consider defendant's contention that the judge erred by denying his motion for a judgment of acquittal. Defendant maintains that there was insufficient evidence to support his conviction for conspiring with "Face" to commit an aggravated assault upon Notis. We disagree.
As stated previously, before the matter was submitted to the jury, defendant moved for a judgment of acquittal on all counts. The court found that the State had presented sufficient evidence to allow the jury to consider all of the charges. The court stated the following with regard to the conspiracy charge:
We have according to [the] testimony, a confrontation of Face with the victim on September the 29th, 2004, the day before. Then the next day if you were to believe the testimony of the victim, . . . Face and the defendant come to the scene together with weapons. And the defendant makes a comment, and then immediately, if you're to believe the testimony of the victim, attacks the victim and Face comes in, just about in concert with a different weapon.
So I believe if . . . the jury were to believe the facts as indicated by the State, there is enough here between the actions and conduct of the defendant and the alleged accomplice on the date in question combined with the activities of the alleged accomplice the day before, for the jury to draw the inference that there was a conspiracy to beat . . . this victim and to do it with weapons.
Rule 3:18-1 provides that, before the State's case is submitted to the jury, the court may enter "a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." In considering whether such a judgment should be entered, the trial court must determine . . . whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 458-59 (1967).]
Here, the trial court correctly applied this test and properly denied defendant's motion.
A person is guilty of conspiring with another person to commit a crime "if with the purpose of promoting or facilitating its commission" the person
(1) [a]grees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) [a]grees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. [N.J.S.A. 2C:5-2a.]
"As the language of the statute reveals, the agreement to commit a specific crime is at the heart of a conspiracy charge." State v. Samuels, 189 N.J. 236, 245 (2007). "Actual commission of the crime is not a prerequisite to conspirator liability." Id. at 245-46. However, an agreement to commit the offense is "pivotal." Id. at 246 (citing State v. Carbone, 10 N.J. 329, 336 (1952)). The conspiracy "may be proven circumstantially." Ibid. (citing State v. Phelps, 96 N.J. 500, 509 (1984)). Indeed, "'[a]n implicit or tacit agreement may be inferred from the facts and circumstances.'" Ibid. (quoting State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div.), certif. denied, 130 N.J. 18 (1992)).
In this case, the State presented sufficient evidence to support defendant's conviction of conspiracy to commit aggravated assault. Based on Notis' testimony, the jury could reasonably find that defendant and "Face" agreed to commit an assault upon Notis in retaliation for the dispute between Notis and "Face" that occurred the day before. The jury was entitled to credit Notis' assertion that "Face" and defendant approached him together.
Furthermore, Notis testified that defendant said, "where our shit at?" (emphasis added). Defendant's statement to Notis supported an inference that defendant and "Face" were acting together. In addition, both defendant and "Face" had weapons and they both struck Notis. Based on this evidence, the jury could rationally infer that defendant and "Face" had pre-arranged and coordinated their attack upon Notis.
We therefore conclude that the trial court did not err by denying defendant's motion for a judgment of acquittal on the conspiracy charge.
We turn to defendant's contention that the prosecutor's remarks during his summation denied him a fair trial and require reversal of his convictions.
"Prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). A prosecutor "is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented." Ibid. (quoting State v. DiPaglia, 64 N.J. 288, 305 (1974) (Clifford, J., dissenting)).
A prosecutor's improper remarks may be a ground for reversal of a conviction if the prosecutor's conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing State v. Ramseur, 106 N.J. 123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956)). In determining whether the prosecutor's conduct was "sufficiently egregious" to warrant reversal, we consider, among other things, whether defense counsel "made timely and proper objections" to the remarks. Ibid. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Ibid. (citing Ramseur, 106 N.J. at 323).
We note initially that, in his summation, defense counsel challenged Notis' credibility. He said that Notis had taken an oath to tell the truth and then "proceeded to fabricate his injuries" by falsely stating that he had a fractured jaw and ankle. He pointed out that the medical records indicated that Notis' jaw and ankle were not fractured in the attack. Counsel asserted that this was significant because the State's case rested almost entirely upon what Notis said.
Counsel also pointed out that some of Notis' trial testimony was inconsistent with the statement he gave to the police on October 6, 2004, and with his testimony before the grand jury. Counsel stated:
There's absolutely no corroboration for anything that Mr. Notis has told you. And we know a couple of things about him. We know that he is willing to embellish his story, to perhaps outright fabricate his story if he feels that the need exists. And we know on top of all [of] that that he's been willing to do it after swearing to tell the truth. He did that in his statement to the police, and he did that to people such as yourselves who compose the Grand Jury.
He took an oath to tell the truth and then he didn't.
Counsel further asserted that, because some of Notis' testimony was false, then everything that he said might be false. He urged the jury to reject all of Notis' testimony.
In responding to these contentions, the prosecutor stated that Notis was "an average . . . hard working guy." The prosecutor said that there was "no reason to believe Darnell Notis has told you anything but the truth in this case." He stated that, to believe otherwise, the jury would have to believe that, moments after he was attacked and while he was bleeding profusely, Notis had made up a story about who had committed the assault.
The prosecutor then addressed defense counsel's assertion that Notis had embellished or fabricated his injuries. The prosecutor noted that x-rays had been taken at the hospital in order to rule out fractures. He said that Notis did not even know what a fracture or contusion were. He asserted: are we going to impute the knowledge of a doctor [to] Darnell Notis? He didn't come here and tell anybody a lie. He told everyone here the truth to the best of his ability. And it was entirely consistent.
And one thing that's consistent throughout is who did this to Darnell Notis.
The prosecutor then went on to say that Notis "came in here and told the truth . . . like he did when he was laying there bloody on that floor that day." He added that: if [Notis] was going to lie, he was going to lie. . . . [I]f he's laying on the ground, and he's bleeding from his head and he says well, this is a great opportunity, I can frame somebody for doing this. And I'[m] going to frame Michael Weaver. I'm going to say it was him that did this to me. Is he going to say Michael Weaver's the one that hit him with the brick? Or is he going to say Michael Weaver's the one that hit him in the head with the pipe? The one that opened up a laceration on his head. If he's going to frame somebody, why not go for the . . . guy who did the most?
He didn't do that. He's telling the truth. He's got no reason to tell you otherwise. He didn't ask for this. He didn't ask to come here today. He didn't ask to be hit in the head at Seth Boyden that day on September 30th. . . .
And I think when you look at his testimony you'll see the places where he's entirely consistent. Who did this, what did they do, when did it happen, where did it happen. And he repeats these things over and over again.
In concluding his summation, the prosecutor stated the following: it's one or the other. Either Darnell Notis came in here and lied to you today, he lied on October 6th, he lied on March 31st and he also lied when he was lying bleeding on the floor. I don't think that's true. I think we can only come to one conclusion, that Darnell Notis is here, he told you the truth, he told you the truth consistent with what he told the officers, that the person who attacked him was that man. Because he told you who did it today, he told them his name when it happened. And he pointed to his face today and he said Michael Weaver did this to me. This is where he lives.
Defendant argues that the prosecutor improperly vouched for Notis' credibility. We disagree. "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). "One of the evils to be avoided by prohibiting vouching for a witness is the circumstance where counsel states or implies that the jury can accept the witness's credibility based upon information outside the trial evidence." Id. at 561.
As we have stated, the prosecutor extensively discussed Notis' credibility in his summation. Although at times the prosecutor offered his own personal opinion as to Notis' veracity, a review of the entire summation indicates that these remarks were based entirely upon Notis' testimony. At no point did the prosecutor suggest or imply that his assessment of Notis' credibility was based on anything outside of the record.
We emphasize that defense counsel did not object to the prosecutor's remarks when they were made. "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999). Furthermore, even if the prosecutor erred by offering his personal view as to Notis' veracity, we are not convinced that defendant was prejudiced by the remarks or that the remarks were so egregious that they denied defendant his right to a fiar trial.
We next consider defendant's contention that the trial court erred by charging the jury on the principles of accomplice liability.
Here, the trial court instructed the jury on aggravated assault as charged in count two of the indictment. The court stated that, under the law, defendant "can be found guilty if he purposely caused serious bodily injury to another." The court stated:
If you find beyond a reasonable doubt that the defendant attempted to cause serious bodily injury, it does not matter whether such injury actually resulted. The law provides that a person is guilty of attempt of acting purposely, [if] he did or omitted to do anything that under the circumstances as a reasonable person would believe him to be was an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
The step taken must be one that is strongly corroborative of the defendant's criminal purpose. The accused must be shown to have had a firmness of purpose in light of the steps he had already taken. These prefatory steps must be substantial and not just very remote, prefatory acts.
Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
A person acts purposely with respect to the result of his conduct if it is his conscious object to engage in that conduct or to cause such a result. A person acts purposely if he acts with design, with a specific intent, with a particular object or purpose, or if he means to do that which he does. For instance, I did it on purpose.
If you find that the [State has] prove[n] beyond a reasonable doubt that the defendant purposely attempted to cause serious bodily injury to another, then you must find the defendant guilty of this charge on count two.
The court additionally instructed the jury on certain lesser-included offenses to aggravated assault, serious bodily injury. The court instructed the jury on aggravated assault, significant bodily injury, and aggravated assault, bodily injury with a deadly weapon.
In its instructions, the court also discussed accomplice liability, noting that the State had alleged that, in addition to his responsibility for his own criminal acts, defendant was legally responsible for the criminal acts committed by "Face." The court explained the concept of accomplice liability. The court then stated that:
[i]n order to find the defendant guilty of the specific crime charged, the State must prove beyond a reasonable doubt each of the following elements[:]
One, that Face committed the crime of aggravated assault, serious bodily injury. I've already explained the elements of this charge when I charged you on count two.
Two, that this defendant solicited him to commit it and did aid or agree to attempt to aid him in planning or committing it.
Three, that defendant['s] . . . purpose was to promote or facilitate the commission of the offense. Four, that this defendant possessed the criminal state of mind that's required to be proved against the person who actually committed the criminal act.
The court defined the terms "solicit," "aid," "agree to aid," and "attempt to aid." The court noted, among other things, that the mere presence at or near the scene of the crime did not make defendant a participant in the offense. The court added that this defendant can be held to be an accomplice with equal responsibility only if you find as a fact that he possessed the criminal state of mind that's required to be proved against the person who actually committed the criminal acts.
In order to convict the defendant as an accomplice to the specific crime charged, you must find that the defendant had the purpose to participate in that particular crime. He must act with the purpose of promoting or facilitating the commission of the substantive crimes with which he's charged.
It's not sufficient to prove only that the defendant had knowledge that another person was going to commit the crime charged, the State must prove that it was defendant's conscious object that the specific conduct charged be committed.
In addition, the court told the jury that if it determined that defendant was not acting as an accomplice on the specific crime charged, the jury could consider whether defendant acted as an accomplice of "Face" with the purpose of promoting or facilitating the commission of some lesser offense. The court explained that: our law recognizes that two or more persons may participate in the commission of an offense, but each may participate therein with a different state of mind. The liability or responsibility of each participant for any offense is dependent on his own state of mind, not on anyone else's.
The court noted that it had previously explained to the jury the elements of the lesser-included offenses of aggravated assault, significant bodily injury, and aggravated assault, purposely or knowingly causing bodily injury with a deadly weapon. The court stated that: in order to find the defendant guilty of the lesser included offenses . . . the State must prove beyond a reasonable doubt that Face committed [one of] the lesser included offenses[.]
Two, that defendant . . . solicited Face to commit the lesser included offense and/or did aid or agree or attempt to aid him in planning that offense.
Three, that defendant['s] . . . purpose was to promote or facilitate the commission of the lesser included offense.
Four, that defendant . . . possessed the criminal state of mind that's required for the commission of the lesser offense.
The court added that the jury may find that defendant was not guilty of all of the offenses charged. The court stated that the jury also may find that [defendant] didn't act as an accomplice, he didn't act as a [principal], that he was not there at all, that even if he was there he was not an accomplice, that he was there, he was an accomplice, but he didn't promote or work together with Face to commit the most serious crime, but a lesser crime. You have to sift through these facts.
If you find that Face attempted to commit serious bodily injury aggravated assault by striking Mr. Notis in the head with the pipe, you can find defendant . . . guilty of that aggravated assault, even though Weaver didn't hit [Notis] with the pipe if it was [defendant's] purpose to help Face commit that crime. Or [defendant] may have had a purpose to commit a lesser crime, or [defendant] may not have been an accomplice at all, or [defendant] may not have been there. That's going to be your decision when you sift through the facts.
Defendant argues that the instructions were erroneous because the court stated that, in order to convict defendant as an accomplice in the commission by "Face" of one of the lesser-included offenses, the jury had to find that "Face" had committed that particular offense. Defendant maintains that, by instructing the jury in this manner, the trial court improperly precluded the jury from considering and possibly finding him not guilty of second-degree aggravated assault and guilty as an accomplice to "Face" in the commission of one of the lesser-included third-degree offenses.
We disagree. Here, the court instructed the jury that, in order to find defendant guilty of second-degree aggravated assault, either as a principal or accomplice, the jury had to find that the State had proven beyond a reasonable doubt all of the elements of that offense. The jury found defendant guilty of this charge. Indeed, there was sufficient evidence for the jury to find defendant guilty either as a principal or as an accomplice to "Face" in the commission of second-degree aggravated assault.
The trial court failed to clearly instruct the jury that it could find defendant guilty of third-degree aggravated assault as an accomplice even if it found that "Face" had committed second-degree aggravated assault. Defendant did not object to this instruction. We are convinced, however, that the error was harmless. If the jury found that "Face" committed second-degree aggravated assault and defendant did not share his intent in the commission of that offense as an accomplice, the jury would not have found defendant guilty of second-degree aggravated assault.
We are therefore satisfied that the error in the court's instruction on accomplice liability as it pertained to the lesser-included offenses was not an error that was "clearly capable of producing an unjust result[.]" R. 2:10-2.
Defendant also contends that his sentence is excessive. Again, we disagree.
Defendant was convicted of conspiracy to commit aggravated assault (count one); aggravated assault, serious bodily injury (count two); possession of weapons under circumstances not manifestly appropriate for such lawful uses as they may have (counts three and five); and possession of weapons with a purpose to use them unlawfully against the person or the property of another (counts four and six).
At the sentencing hearing on April 24, 2006, the court found the following aggravating factors: 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 court found no mitigating factors.
The court explained its findings and the weight it was according to the aggravating factors:
I'm familiar with the facts of the case. I presided over the trial. I find the following aggravating factors. There is a strong risk of re-offense. This defendant does not have a high school degree. He has not had any employment. According to the Presentence Report, he has not worked since the age of 16. He was on probation at the time of this offense. He has two cases pending Grand Jury.
I think he represents a significant risk of re-offense, and I'm giving a great deal of weight to that factor. He really never, as an adult, at least been able to abide by the laws of society.
I've considered the extent of his prior record. This is his second indictable conviction and he is 19 years of age. I'm also giving a great deal of weight to aggravating factor number nine, the need for deterrence. If you look at the victim impact statement and the victim['s] testimony here, I believe that there has been [a] significant impact on the victim here, both physically and emotionally, and I think that the sentence must serve as specific deterrence as to [defendant] specifically and in general.
This victim was a maintenance worker at the complex when he was brutally attacked here by two individuals, one of whom was [defendant], and the sentence must serve [specific] and general deterrence and [I am] giving a great deal of weight to that aggravating factor. This defendant has no mitigating factors on his behalf. He acted in conjunction with his accomplice[.] [T]hey each had different roles, each had different weapons. I simply can find no mitigating factors on behalf of this defendant.
The court merged counts one, four and six with count two. The court sentenced defendant to ten years of imprisonment on count two, with a period of parole ineligibility as prescribed by NERA. The sentence was consecutive to a sentence defendant was then serving as a result of a violation of probation. On count three, defendant was sentenced to eighteen months of imprisonment, concurrent to the sentence imposed on count two. Defendant also was sentenced to an eighteen-month term on count five, which was concurrent to the sentences on counts two and three.
Defendant argues that the imposition of a maximum sentence for a second-degree offense on count two is excessive. Defendant contends that the trial court placed too much weight on the need for deterrence. He notes that he has only had one prior conviction on a drug charge and asserts that the "actual likelihood" that he will re-offend is "minimal." Defendant further maintains that there was nothing "heinous about this offense" and there is no reason why he should be sentenced to a term beyond the middle of the range of sentences for second-degree offenses.
We disagree with these contentions. We are convinced that the record fully supports the trial court's findings on the aggravating and mitigating factors. We are satisfied that the sentences imposed by the trial court 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).