July 1, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SALAHUDDI MEYERS, A/K/A SALAHUDDIN MEYERS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-0985.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2009
Before Judges Stern, Rodríguez and Ashrafi.
Defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), other offenses merged therein, and possession of a handgun without a permit. The defendant was sentenced to six years in the custody of the Commissioner of the Department of Corrections, with eighty-five percent thereof to be served before parole eligibility under the No Early Release Act (NERA), for the aggravated assault, and to a concurrent sentence for the permit violation.*fn1 On this appeal defendant argues:
POINT I: THE TRIAL COURT CONDUCTED AN INCOMPLETE AND INACCURATE ANALYSIS OF THE FIFTEEN FACTORS UNDER THE STATE V. GROSS ANALYSIS OF THE FEDERAL RULES [SIC] OF EVIDENCE WHICH SEVERELY PREJUDICED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
POINT II: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN THE JUDGE INSTRUCTED THE JURY ON A CHARGE OF LESSER INCLUDED OFFENSES, UNDER STATE V. THOMAS, EVEN THOUGH THE DEFENSE COUNSEL AND THE PROSECUTOR DID NOT REQUEST THIS CHARGE; THEREFORE THE JURY CHARGE BIASED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT III: THE TRIAL COURT DEMONSTRATED PREJUDICE TO THE DEFENDANT WITH REMARKS AND AND [SIC] PROCEDURES THROUGH WHICH THE CUMULATIVE EFFECT THROUGHOUT TRIAL VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
POINT IV: THE PROSECUTOR VIOLATED THE DEFENDANT'S RIGHTS WHEN HE DENIGRATED THE VICTIM, WHO WOULD BE COMING FROM JAIL TO TESTIFY AT THE TRIAL THAT THE DEFENDANT WAS NOT INVOLVED IN THE CRIME.
POINT V: THE PROSECUTORIAL MISCONDUCT FROM THE OPENING STATEMENTS THROUGH THE CLOSING ARGUMENTS OF THE JURY TRIAL CREATED A PREJUDICIAL APPROACH WHICH SEVERELY DAMAGED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
(A) THE PROSECUTOR MADE DISCRIMINATORY REMARKS AGAINST THE VICTIM, RAUSHON FAULCON, EMPHASIZING HE WAS IN PRISON WHILE TESTIFYING AND THAT FACT WOULD MAKE HIM FEARFUL OF TELLING THE TRUTH WHICH PREJUDICED THE TRIAL, AND INFRINGED ON DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
(B) PROSECUTOR MADE IMPROPER AND OVERREACHING COMMENTS DURING SUMMATION WHEN THE PROSECUTOR STATED THAT THE DEFENDANT USED THE GUN IN OTHER CRIMES WITH THE CO-DEFENDANT, WHEN NO EVIDENCE WAS PRESENTED TO SUPPORT THESE BIASED STATEMENTS.
POINT VI: DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE ATTORNEY FAILED TO INTERVIEW OR COMMUNICATE WITH WITNESS, PATRICIA JONES, UNTIL THE WITNESS CAME TO COURT TO TESTIFY; THEREBY INFRINGING ON DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT VII: DEFENSE COUNSEL NEGLIGENT THROUGHOUT THE TRIAL BY FAILING TO INVESTIGATE LEADS, OBJECT AT KEY TIMES AND PREPARE FOR ARGUMENTS WHICH NEGATIVELY IMPACTED UPON DEFENDANT'S CONSTITUTIONAL RIGHTS.
POINT VIII: THE TRIAL COURT ERRED IN MAKING PREJUDICIAL COMMENTS AT THE SENTENCING PROCEDURE AND GIVING THE DEFENDANT AN EXCESSIVE SENTENCE, BECAUSE THE FACTS FOUND BY THE JUDGE ARE NOT SUPPORTED IN THE RECORD UNDER THE CORRECT SENTENCING GUIDELINES.
We reject the contentions and affirm the judgment.
The facts, as developed at the trial, reveal the following. On the evening of November 19, 2004, the victim, Rahson Faulcon, and his brother Lucain were riding their bicycles in Plainfield. Faulcon saw a white Chevy Impala pull up next to them.*fn2 He believed there were about five people in the car, although he recognized only two of them, "Sal," who was in the front passenger seat, and "Irv," who was sitting directly behind. Faulcon saw "Sal" roll down the window and shoot at Faulcon and his brother several times. Faulcon was hit once in the lower part of his left leg.
Officers Jeffrey Carrier and Jeffery Plum responded to the reports of a shooting. When the officers arrived at the scene, they observed Faulcon lying on the sidewalk surrounded by a crowd of people, some of whom appeared to be trying to take his money and his boots. Carrier noted that Faulcon "was obviously in pain, lying on the sidewalk," and appeared to be agitated. Both officers noted that Faulcon had a gunshot wound to his "[l]ower left leg." When Officer Plum tried to speak with Faulcon, he did not want to speak, and was "[e]xtremely angry" and "[d]efiant."
While Faulcon received treatment for his injury, Officer Carrier and other officers began to cordon off the crime scene, locate witnesses, and gather evidence. Three shell casings were recovered.
After the medical personnel arrived and placed Faulcon into an ambulance, Officer Plum briefly spoke with Faulcon again. While Faulcon was still angry and upset, he "reluctantly" told Plum that the shooter had been in a white Impala and that he had seen "Irv and Sal" inside the vehicle. Officer Carrier also learned that a white Chevy Impala was involved in the shooting.
A few hours later, at about 2:30 a.m., Carrier spotted a white Impala on Front Street and radioed another patrol car that it could have been involved in the Faulcon shooting.
Officer Gregory Lordi of the Plainfield Police Department*fn3 pulled the vehicle over, but as he exited his patrol car, a woman exited from the rear passenger side of the Impala, and the vehicle sped off at a high rate of speed. Lordi returned to his patrol car and resumed pursuit. He ultimately caught up and stopped the car at which time the driver and a female in the front passenger seat ran from the vehicle.
Officer Carrier, who also caught up with the Impala, also saw "several" individuals exiting the car. He and Lordi chased the driver through a housing complex, and apprehended him in a park across the street from the complex. The driver was identified as Kenneth Lee. The other individuals who exited the car were not apprehended.
After arresting Lee, Officer Lordi waited with the vehicle so it could be towed. As he waited, Lordi observed what appeared to be a bullet mark on the passenger side of the Impala. On November 20, 2004, Detective Thomas Masuhr of the Plainfield Police Department recovered several fingerprints from the Impala. The recovered prints were sent to Trenton and run through the Automated Fingerprint Identification System (AFIS). AFIS registered a "hit" on one of the prints to defendant.
Officer Adrian Furman of the Union County Sheriff's Office Crime Scene Unit conducted a further examination of the fingerprints on January 20, 2005, and matched one of the prints from the Impala to defendant's right thumb.*fn4 The police later learned that the Impala was a rental car.
On December 9, 2004, Faulcon gave a formal statement to the police. In the statement, Faulcon said that he knew "Sal's" last name to be "Meyers," but he did not know "Irv's" last name. He stated he knew both of them from the Hubbard School.
Faulcon also looked at photos in an array, and picked defendant's photo as the individual who shot him. Faulcon signed the sworn statement as to the shooting and two statements regarding the photo identification.*fn5
On December 29, 2004, Officer Stacey Aivaliotis responded to a call from "the Howard Johnson's Hotel on Route 22 in North Plainfield." A hotel employee took the officer to room 130, where a loaded handgun was recovered from a nightstand drawer. Aivaliotis learned that the last occupant of the room had been one Najah Martin.
Martin testified that she had stayed in the room with Irving Pierre Louis (Irving). She further testified that a friend of Irving's had stayed there as well and that the handgun found was not hers.
Detective Gary Mayer of the Somerset County Prosecutor's Office Forensic Unit testified that the three shell casings recovered by officers at the scene of the shooting had been fired from the handgun recovered at the Howard Johnson's on December 29, 2004.
Patricia Jones testified for defendant that on the night of the shooting, she was at the scene with Faulcon, whom she knew as "Billy Jean." She indicated she saw the white Impala approach and the front passenger stick his hand out the window, holding a pistol, and fire at least two shots at Faulcon. Jones further testified that she did not see defendant in the vehicle.
During his direct testimony, Faulcon recanted material portions of his pretrial statements and identification of defendant. However, the judge permitted the State to introduce his prior inconsistent statement. Defendant now argues that a reversal of his conviction is required because: "The trial court conducted an incomplete and inaccurate analysis of the fifteen factors under the State v. Gross analysis of the federal rules [sic] of evidence which severely prejudiced defendant's federal and state constitutional rights to a fair trial." Under New Jersey law,
[i]t is well established that a propounding party witness' out-of-court written or recorded statement sought to be admitted under N.J.R.E. 803(a)(1)(A) (formerly Evid. R. 63(a)(i)) must be evaluated by the trial judge at an N.J.R.E. 104 or "Gross" hearing outside the jury's presence considering a number of factors "to determine whether the statement was made or signed under circumstances establishing sufficient reliability that the factfinder may fairly consider it as substantive evidence." [State v. Baluch, 341 N.J. Super. 141, 179 (App. Div.), certif. denied, 170 N.J. 89 (2001) (quoting State v. Spruell, 121 N.J. 32, 46 (1990)).]
The factors to be considered at the N.J.R.E. 104 hearing were set out by our Supreme Court in State v. Gross, 121 N.J. 1 (1990):
(1) the declarant's connection to and interest in the matter reported in the outof-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence. [Gross, supra, 121 N.J. at 10.]
After the recantation, Faulcon testified, outside the presence of the jury, that at the time of the December 9, 2004, statement, he was taken to the police station while "high on Percosets and marijuana," and felt as if he were confined. Faulcon testified that material portions of his statement were false, including his identification of defendant. He added he was "under the influence when I got shot" as well as when he gave the statement. He also testified the police told him which pictures to identify or that his brother would be charged with the crime.
Detectives Francis Wilson and Eugene Goldston testified that no one else was present during their respective questioning of Faulcon, that he did not appear to be "under the influence of any drugs" or medication, and that Faulcon asked the police to pick him up and take him to headquarters for the statement because he was on crutches. Wilson took the statement concerning the shooting, and Goldston "conducted the photo arrays because [he] was not familiar with the investigation."*fn6
Wilson testified that the investigation focused on defendant and "Irv" as a result of Faulcon's official report*fn7 and subsequent identification. Two separate arrays of photographs were shown to Faulcon by Goldston on December 9. He was cooperative and not told "what to say." Faulcon "raised his right hand and swore" to Goldston that everything he said was true. Detective Wilson is a notary, and Faulcon acknowledged the statements before him.
Judge Heimlich noted that "there are 15 factors under Gross," and addressed "each one of them" before permitting the statement into evidence. In essence the judge concluded that there was no reason for Faulcon to fabricate the story at the time, that it was corroborated by other evidence including the "expert fingerprint" report of defendant in the car, and the absence of any coercion and made with knowledge it "was going to be used by the police officers." He found that "the State has presented credible testimony refuting the witness' claims" and that the statement was "very credible and believable."
There was sufficient evidence in the record for the judge's findings resulting in admission of defendant's statements, including the photo identifications. State v. Locurto, 157 N.J. 463 (1999).*fn8
Defendant claims he is entitled to a new trial because the trial court instructed the jury on the lesser included offense of third-degree aggravated assault under N.J.S.A. 2C:12-1(b)(7) over his objection. Neither defendant nor the prosecution thought it was an appropriate lesser included offense when the judge discussed the charge with the jury. There was no notice issue. Both counsel were advised of the discussion before summation.
Defendant is correct that our Supreme Court has ruled that a "trial court has no sua sponte obligation to charge the jury on a related offense that is not requested or consented to by the defense." State v. Thomas, 187 N.J. 119, 134 (2006). However, the Court has also made it clear that "a sua sponte requirement for a jury charge" will occur when the charge is "(1) 'included' in the offense actually charged and not simply related to the pattern of events that give rise to the offense charged, and (2) such that 'the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.'" Id. at 136 (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). See also State v. Garron, 177 N.J. 147, 180-81 (2003); State v. Powell, 84 N.J. 305, 317 (1980).
N.J.S.A. 2C:12-1(b) provides that a person guilty of aggravated assault if the actor
(1) [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; or
(7) Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury. [N.J.S.A. 2C:12-1(1) and (7).]
"[S]erious bodily injury" is: "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." N.J.S.A. 2C:11-1(b).
"Significant bodily injury" is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any of the five senses." N.J.S.A. 2C:11-1(d). Reckless conduct is of a lesser culpability than purposeful or knowing conduct. State v. Sloane, 111 N.J. 293, 302 (1988). See also State v. Murphy, 185 N.J. Super. 72, 75-76 (N.J. Super Ct. Law Div. 1982).
Defendant shot Faulcon through the lower left leg. There was testimony that Faulcon was still suffering from the injury when he gave his statement to the police on December 9, 2004, but no testimony or proof about how much longer any impairment lasted. Moreover, while multiple shots were fired, he was hit only once in the leg. Thus, the jury could have found defendant intended to cause significant, as opposed to serious, bodily injury, and the judge properly charged the lesser offense. See State v. Brent, 137 N.J. 107, 113-14 (1994); Sloane, supra, 111 N.J. at 302-04. Because the N.J.S.A. 2C:12-1(b)(7) charge is a lesser included offense, the absence of notice in the indictment and a request for the charge by defendant pose no problem. Thomas, supra, 187 N.J. at 130-32.
In any event, we find no prejudice to defendant as a result of the charge. We fail to comprehend how defendant was harmed by a charge on a lesser included offense when he was convicted of the greater.*fn9 See Sloane, supra, 111 N.J. at 303. See also State v. Wilder, 193 N.J. 398, 412-18 (2008).
Among his claims of "prosecutorial misconduct," defendant complains about the following colloquy at the end of Faulcon's direct testimony:
Q: What do people in prison think about others who testify in a criminal proceeding?
A: I don't know.
Q: You don't know?
Q: You're in prison, aren't you?
A: Yeah, but I'm good where I'm at.
Q: It's not bad to be a snitch?
A: I'm saying like some people get God and some people don't.
MR. CLEAVER: Okay, I have nothing further.
The questioning was relevant to establish a motive for Faulcon to recant his earlier statement implicating defendant. Also, because the jury was already aware that Faulcon was serving a prison term, defendant was not prejudiced by the disclosure that he was in prison. In fact, defense counsel immediately picked up on the line by asking why Faulcon was in prison and commenced a long series of questions about his record and drug use, including his use of drugs on December 9, 2004. The defense sought to benefit from the testimony in terms of defendant's condition at the time of the event and his initial reports.*fn10 This is no basis for reversal.
Because we find they are without sufficient merit, we find no need for extended discussion on the other points. R. 2:11-3(e)(2). We add only the following.
There is no merit to the claim that the judge was unduly prejudiced against defendant. The findings of credibility do not warrant a conclusion of prejudice, and defense counsel neither objected to nor disagreed with what the judge said to counsel at the outset of the proceedings concerning defendant's other serious charges. In fact, after the jury returned its verdict, defense counsel raised the possibility of a plea to the other scheduled trial.
Defendant claims the trial judge erred in failing to dismiss a juror who had expressed a hope during voir dire that the trial would be short, as she had future travel plans. However, the jury selection has not been transcribed, the cited record does not support the assertion, and there is no suggestion in the record that the juror's travel plans in any way impacted the trial.
We fail to see how a sentence at the low end of the sentencing range can be deemed excessive.
The record does not warrant a finding that defendant was denied the effective assistance of counsel. He may pursue that issue on a petition for post-conviction relief. State v. Preciose, 129 N.J. 451 (1992). This includes defendant's claim that counsel was ineffective for failing to properly prepare defense witness Patricia Jones.
The judgment is affirmed.