March 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAHIEM ALLAH HOWELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 05-05-0286.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 29, 2009
Before Judges Axelrad, Lihotz and Messano.
Defendant, Tahiem Allah Howell, was convicted by a jury of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), the lesser included offense of attempted murder (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count four)*fn1 . He was also convicted in a bifurcated non-jury trial of the second-degree offense of being a certain person who cannot possess a firearm, N.J.S.A. 2C:39-7b (count six). The court merged the unlawful purpose conviction with the aggravated assault conviction, and sentenced defendant to seven years' imprisonment, with an 85% period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.1. The court also imposed concurrent imprisonment terms of four years for unlawful possession of a weapon and seven years with five years of parole ineligibility for certain persons not to possess firearms. Appropriate fines and penalties were also assessed.
On appeal, defendant challenges both his conviction and sentence, presenting the following arguments for our review:
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT INADMISSIBLE AND PREJUDICIAL TESTIMONY FROM APRIL ROBINSON AND KEISHA JONES UNDER THE GUISE OF N.J.R.E. 803(c)(1). (PARTIALLY RAISED BELOW).
A. THE TESTIMONY ELICITED FROM APRIL ROBINSON REGARDING STATEMENTS ALLEGEDLY MADE BY DANIEL EDROS DID NOT QUALIFY AS PRESENT SENSE IMPRESSIONS PURSUANT TO N.J.R.E. 803(c)(1).
B. SINCE THE TESTIMONY ELICITED FROM KEISHA JONES REFERRED TO STATEMENTS MADE BY SHAROD THOMAS, WHO DID NOT TESTIFY AT TRIAL, THE ADMISSION OF SUCH TESTIMONY VIOLATED THE DEFENDANT'S RIGHT OF CONFRONTATION, RENDERING IT INADMISSIBLE.
THE JURY'S VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A HANDGUN WITHOUT A PERMIT INTO COUNT VI CHARGING POSSESSION OF A HANDGUN BY A CONVICTED FELON. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We have considered each argument in light of the record, applicable law, and submissions in the briefs. We are not persuaded by any of defendant's arguments and affirm.
The charges stemmed from a shoot-out, akin to the "Wild West," spanning several blocks in the City of Wildwood, at 3:40 a.m. on October 24, 2004. Defendant and his friends, co-defendants Sharod Thomas and Joel Gonzalez, a/k/a Joel Nieves, shot at and wounded co-defendant Daniel Edros in his right shoulder. According to the State, Edros exchanged gunfire and wounded defendant and Gonzalez.
The following witnesses testified for the State: Keisha Jones, a friend of defendant, Thomas and Gonzalez; Edros; Sharonda Simmons, Edros' girlfriend; April Robinson, an occupant of the apartment where Edros went after he was shot; Wildwood Police Officer Gary O'Shea; Detective Robert Harkins of the Cape May County Prosecutor's Office; and Detective Sergeant William Wheatley of the New Jersey State Police Ballistics Unit.
According to the testimony, defendant and Thomas stayed at Jones' apartment at 341 West Andrews Avenue in Wildwood the night before the shooting. At 7:00 p.m. on October 23, 2004, Thomas, in the company of defendant and Gonzalez, drove Jones to her grandmother's house on West Baker Avenue where she spent the night. After dropping her off, the three men left. Jones remained at the house until she received a call from her boyfriend early in the morning telling her that defendant and Gonzalez had been shot.
Meanwhile, after meeting his girlfriend Simmons at their apartment on Andrews Avenue, Edros went "club hopping" in Wildwood Saturday evening and into the morning hours of Sunday, October 24. The last club Edros went to on the night of the shooting was "Shakers" on Schellinger and Pacific Avenues in Wildwood. Knowing he would be patted down before entering the club, Edros hid his 9mm gun and two magazine clips in a back alley. Just before 2:00 a.m. Sunday, Edros left the club and walked to Romeo's Pizza Shop on Pacific Avenue, which was halfway between Shakers and his apartment on Andrews Avenue. Edros stayed there about twenty or thirty minutes, and on his walk home, recovered his gun from about five or six blocks away, loaded it, put it in his waistband, and continued to walk home on Jersey Avenue.
As he walked on New Jersey Avenue between Burke and Davis Avenues, Edros heard a couple of gunshots. Suddenly, he realized he was hit by a bullet just below his right collarbone. Edros then pulled out the gun he had in his waistband and fired it into the air to "let it be known" that he also had a gun "in case anybody was shooting at [him]." Edros heard a couple more gunshots after he fired his gun and re-fired random shots into the air.
Edros began running to the apartment at 120 Andrews Avenue, about two blocks away, occupied by his friend "Cane" and Cane's girlfriend "Precious." Another occupant of the apartment, Precious' cousin Robinson, testified that she was awakened by a knock on the window and, after getting dressed, she entered the kitchen where Edros was talking to Precious and Cane. Robinson saw that Edros had his shirt off and had blood dripping from his shoulder, so she gave him a towel. According to Robinson, she overheard Edros say, "Six and his boys had shot him" and that he shot back at them but did not know if he had hit any of them.*fn2
Defense counsel objected to this testimony on hearsay grounds, but the prosecutor argued it was admissible under the present sense impression exception. An inaudible, untranscribed sidebar occurred off the record in which the court apparently agreed with the State, and questioning resumed.
According to Simmons, Cane called and told her that Edros had been shot and she should meet them to go to the hospital. Simmons saw Edros shirtless and bleeding from the right shoulder and down his chest. Edros was subsequently treated at the hospital and questioned by the police. He was eventually transferred to another hospital, where he remained until the next morning, at which time he was arrested and taken to jail.
Edros testified that he did not provide any details about the shooting to the occupants of the apartment. He also denied knowing Thomas, Rodriquez, or defendant.
Jones testified that her boyfriend called her and advised that defendant and Gonzalez had been shot and were at the hospital. He requested she attempt to find out what had occurred. When she could not obtain information from the hospital, Jones reached Thomas on his cell phone and was informed that he had just dropped defendant and Gonzalez off at the hospital. Thomas then picked up Jones in the van and brought her to the hospital. Jones was informed that defendant had been shot in the stomach and Gonzalez had been shot in the thigh.
The police brought Jones and Gonzalez back to the station for questioning, after which Jones was arrested and taken to the county jail. She gave the police a statement different from her trial testimony. She initially told the police she was walking with defendant, Thomas, and Gonzalez after having left the nightclub when they heard gunshots, and by the time they got back to the van, defendant and Gonzalez had been shot. Jones also stated that they had been stopped by police prior to their arrival at the hospital, and during the stop she was in the rear of the van tending to defendant's bleeding. She also claimed she was originally driving the van but then changed seats with Thomas so she could tend to defendant's wounds. At trial, Jones testified that she told the police this "story" just to satisfy them, that being, "what I heard [Gonzalez] tell the other officer [at the hospital]," but the truth was that she was at home and not with the three men at the time of the shooting.
Officer O'Shea explained that at about 3:40 a.m., he and two other units were dispatched in response to a 911 call that gunshots were fired in the area of the 100 block of East Burke Avenue. As he drove to the area, he observed a white van backing out of a parking spot which then proceeded eastbound on Andrews Avenue, located one block south of East Burke Avenue. The van was the only vehicle in the area. After stopping the van a few blocks later, the officer observed a black male driving and another black male in the front passenger seat. He did not observe any other occupants in the vehicle because of the dark tinted windows. The officer asked the driver if he had heard any gunshots and the driver responded that he believed he heard some fireworks or gunshots when he was leaving Michael's Bar while driving on New Jersey Avenue. The driver provided a New York driver's license in the name of Sharod Thomas. O'Shea described Thomas as "calm," "cool," and "polite," and he did not appear to be in a hurry. No one reported a need for any medical assistance or having been injured. Consequently, Officer O'Shea wrote down Thomas' information and sent him on his way. The entire stop lasted four to five minutes.
Officer O'Shea then drove to the command post on Burke Avenue and spoke with the 9ll caller. The caller stated he heard five gunshots fired east of his residence on Andrews Avenue, a series of three, and then a series of two. Following a search, the police recovered projectiles, spent casings and weapons in three locations: 100 East Burke Avenue, 136 East Davis Avenue and l20 East Andrews Avenue. In the area of l36 East Davis Avenue, the police found two 9mm spent casings and a magazine clip containing 9mm ammunition. In a neighboring vacant lot secreted in shrubbery, they recovered a zippered bag containing a .22 caliber semi-automatic pistol and a .380 semi-automatic pistol with loose .380 rounds. In addition, there were bullet holes in the apartment walls at 126 and 136 East Davis Avenue.
In the l00 block of East Burke Avenue, the police recovered 9mm shell casings, .380 auto caliber Winchester shell casings, a spent bullet, and a full bullet. On East Andrews Avenue, the police found three spent 9mm casings. In addition, a plastic bag was found in a rear shower stall containing what was presumed to be Edros' 9mm semi-automatic handgun and magazine clip that he claimed he discarded when he entered the apartment. Of the three weapons found, only the 9mm handgun could be linked to any of the spent casings recovered. The ballistics expert opined that at least two weapons had been fired in the area and at least one additional gun from those recovered was fired during the shootout.
The jury acquitted defendant of attempted murder but convicted him of the lesser included offense of aggravated assault and second-degree possession of a weapon for an unlawful purpose and third-degree unlawful possession of a handgun. In the bifurcated proceeding, defendant was also convicted of the second-degree offense of being a certain person who cannot possess a firearm.
Defendant's two evidential challenges relate to testimony given by the State's witnesses regarding statements made by others. The first involved Robinson's testimony that Edros claimed he had been shot by "Six and his boys," a reference to Thomas, Gonzalez, and defendant. In view of Robinson's testimony that the statement was made by Edros after he entered the apartment at 3 a.m., shot and bleeding from the shoulder, and in great pain, the court found, over defendant's objection, that Robinson's statements satisfied the present sense impression exception to the hearsay rule. N.J.R.E. 803(c)(1). That exception provides for the admissibility of "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate," ibid., notwithstanding that the declarant might have been available to testify at trial, N.J.R.E. 803(c). Defendant argues that since a substantial amount of time passed from the shooting to when Robinson heard the statement, it could not qualify as a present sense impression, and further urges that her testimony had a devastating and prejudicial impact on his case.
Considering the time that passed from when Edros realized he was hit by a bullet, fired in the air, and was admitted to Cane's apartment two blocks away, we are inclined to agree with defendant that Edros' statements relating the details of the shooting were not the equivalent of describing the crime "immediately after" it occurred. Accordingly, they were not admissible as a present sense impression. See State ex rel. J.A., 195 N.J. 324, 340 (2008) (holding that the declarant's recitation of the details of a robbery ten minutes after it occurred did not suffice as a present sense impression under the contemporaneous or "immediately after" time requirement).
However, we are satisfied that, although the predicate N.J.R.E. 104 hearing was never conducted, Robinson's statements qualified for admission as an excited utterance. The excited utterance exception to hearsay applies to "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). As opposed to the indicia of reliability occasioned by the contemporaneous relaying of information, the excited utterance exception is based upon the premise that the "'[e]xcitement caused by the observation of a startling event insures the reliability of a spontaneous statement about it made at or near the time of the event's occurrence.'" In re C.A., 146 N.J. 71, 98 (1996) (quoting Biunno, Current N.J. Rules of Evidence, Comment 1 on N.J.R.E. 803(c)(2) (1994-95)).
In Truchan v. Sayreville Bar & Rest., Inc., 323 N.J. Super. 40 (App. Div. 1999), we set forth the following factors to evaluate whether a statement qualifies as an excited utterance:
(1) the amount of time that transpired between the initial observation of the event and the subsequent declaration of the statement; (2) the circumstances of the event; (3) the mental or physical condition of the declarant; (4) the shock produced; (5) nature of the statement; and (6) whether the statement was made voluntarily or in response to a question. [Id. at 48-49.]
See also State v. Branch, 182 N.J. 338, 366 (2005); State v. Cotto, 182 N.J. 316, 328 (2005).
The determination of whether the amount of time that passes between the event and declaration is too long to bar an excited utterance claim is a fact-specific one. State v. Long, 173 N.J. 138, 159 (2002). There is no specific time that will suffice for this determination, rather we focus on whether the effects from the event persist and whether there was a reasonable opportunity, given the circumstances of the situation, to fabricate. Id. at 159-60. "'The hearsay statement need not be contemporaneous with the startling event . . . as long as there is a showing that the interval was brief and the excited state of the declarant continued.'" Id. at 159 (quoting State v. Clark, 347 N.J. Super. 497, 506 (App. Div. 2002)).
The time delay between Edros' being shot, firing into the darkness, and running the two blocks to Cane's apartment may be enough to be outside of the narrow window allotted for a present sense impression. We are satisfied, however, that the interval was brief enough to suggest that Edros was still under the stress of being shot for his comments at the apartment to fall within the excited utterance exception. Moreover, the record demonstrates that Edros remained physically shaken by the event and did not have the time to deliberate when he blurted out to Robinson, Cane, and Precious about being shot by "Six and his boys." As Edros was taken to the hospital for his injury, it is clear that it was serious enough that the effects were palpable for some time after the event, and certainly only minutes after he was shot. In fact, he testified that after being shot, he felt like his heart was outside his chest. Robinson described Edros as being out of breath, almost falling over, holding his chest, and bleeding. Additionally, Edros provided the details of the shooting voluntarily and not in response to any questions or leading comments by the occupants of the house, providing further evidence of its trustworthiness.
Defendant also argues that Jones' testimony of Thomas' telling her over the phone that defendant and Gonzalez had been shot and he had just dropped them off at the hospital, as well as her reference to the recanted initial statement to the police that she had been out with defendant, Thomas, and Gonzalez (referencing Gonzalez' story), as opposed to staying at her grandmother's house, violated his right of confrontation, as neither co-defendant testified at trial. According to defendant, the prosecutor relied heavily on this testimony during summation to establish the closeness of Thomas, Gonzalez, and defendant; that they were drinking together before engaging in the shooting of Edros; and that they were acting in concert with the same criminal mind, all of which denied defendant's right to a fair trial.
We are not persuaded by defendant's argument. Jones testified that at the time of the incident she knew Thomas, Gonzalez, and defendant for about a year and one-half through her boyfriend, and that it appeared all of their lives the three had been friends. She also identified Thomas by the nickname "Six." Jones further linked the three to the rented van, which she explained was the customary practice for Thomas, defendant, and her to share for grocery shopping and other errands. She also relayed, without objection, getting dropped off at her grandmother's house; her boyfriend phoning her about the shooting; phoning the hospital; and her phone conversation with Thomas during which he told her he was in the van, had dropped off the other two at the hospital, and was coming to pick her up. Again without objection, Jones testified about her statement to the police regarding where she went out clubbing with Thomas, Gonzalez, and defendant, which she later recanted and provided a different version in which she was not present during the shooting.*fn3
Jones' characterization of the longstanding relationship of Thomas, Gonzalez, and defendant, and her placement of the three men together the night of the shooting, was done in testimony not challenged on appeal. Any error in admitting the testimony now challenged did not possess a clear capacity to bring about an unjust result. R. 2:10-2; State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S.Ct. 593, 145 L.Ed. 2d 493 (1999). On direct examination, Jones freely admitted her initial statements were untruthful and inconsistent with her trial testimony and she was also subject to cross-examination; thus her credibility was at issue. Moreover, in summation, both the prosecutor and defense counsel commented as to her two entirely different versions of whether or not she was present during the shooting. The prosecutor's position was that it did not matter what version was the truth because the purpose in presenting her testimony was to identify Six, establish the longstanding relationship of the three men, and to put the three individuals together that night, which was equally true in her trial testimony of being dropped off at her grandmother's house.
Defendant's claim that his convictions were against the weight of the evidence is not cognizable on appeal because he failed to preserve the issue on appeal by filing a motion for a new trial in the trial court. R. 2:10-1. We perceive of no reason to waive this procedural defect.
Turning to defendant's sentence, he argues, for the first time, that we should merge count four charging unlawful possession of a handgun with count six charging possession of a handgun by a convicted felon because a convicted felon could not obtain a permit. Accordingly, defendant contends that the charges contain the same basic elements in fact and law. We disagree. The proofs required to support a conviction for the unlawful possession of a weapon are that the defendant: (1) knowingly possessed; (2) an object that was a handgun; (3) for which he did not possess a permit. N.J.S.A. 2C:39-5b. The proofs required to support a conviction for certain persons not to possess a firearm are that the defendant: (1) who had been previously convicted of a felony; (2) possessed an object; (3) that was a firearm. N.J.S.A. 2C:39-7b. Given that these offenses have separate and distinct elements, neither offense is the lesser of the other and they do not merge. N.J.S.A. 2C:1-8(d).
Moreover, the gravamen of these offenses is different. As we stated in State v. Harper, 153 N.J. Super. 86, 89 (App. Div. 1977), the "obvious legislative intent of N.J.S.A. 2A:151-8 [the predecessor of N.J.S.A. 2C:39-7] was to deter those previously convicted of serious crimes from possessing dangerous weapons." One of the chief "evils sought to be suppressed by the statute was the possibility of any show of force, real or apparent, by one who had already been proven a felon." State v. Middleton, 143 N.J. Super. 18, 23 (App. Div. l976). In contrast, the gravamen of the offense under N.J.S.A. 2C:39-5b is the failure to have a firearm permit. State v. Cooper, 2ll N.J. Super. 1, 22-23 (App. Div.), certif. denied sub nom., State v. Lawson, l05 N.J. 525 (1986). The Supreme Court has determined that N.J.S.A. 2C:39-5b offenses are essentially "regulatory" offenses in that they "prohibit possession of firearms and other weapons without regard to the individual's intent or purpose in possessing them. The only 'intent' required is the general intent to possess the weapon: in the language of the Code, 'knowledge' that such circumstances exist." State v. Harmon, 104 N.J. 189, 197 (1986).
Nor do we find defendant's seven-year sentence with NERA parole disqualifier for his second-degree aggravated assault conviction to be manifestly excessive. The judge found aggravating factors three and nine, N.J.S.A. 2C:44-1a(3)&(9), and no mitigating factors, N.J.S.A. 2C:44-1b. The judge properly followed and applied the sentencing guidelines and criteria, and the sentence does not shock our judicial conscience. State v. Ghertler, 114 N.J. 383, 387-89 (1989); State v. Roth, 95 N.J. 334, 362-64 (1984).