July 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MITCHELL WEST, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-0939.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2009
Before Judges Payne and Waugh.
Defendant, Mitchell West, convicted by a jury of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, appeals from his conviction and from his extended-term sentence of thirty years of imprisonment, subject to the eighty-five percent parole ineligibility period specified in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following issues:
THE PROSECUTOR'S REFERENCES TO DEFENDANT'S CHARACTER DURING CLOSING ARGUMENT WERE IMPROPER AND THE MISCONDUCT REQUIRES THAT A NEW TRIAL BE ORDERED.
THE IMPROPER RULING ALLOWING A STATEMENT MADE BY DEFENDANT WEEKS AFTER THE SHOOTING OF RASHON PONDER INDICATING THAT THERE HAD BEEN TROUBLE BETWEEN THEM IMPROPERLY HAMPERED DEFENSE COUNSEL'S CROSS EXAMINATION OF AN INVESTIGATING OFFICER.
THE 30 YEAR MANDATORY EXTENDED TERM IMPOSED ON DEFENDANT IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.
In a pro se supplemental brief, defendant raises the following additional issues:
THE TRIAL COURT COMMITTED PLAIN ERROR THEREBY DEPRIVING DEFENDANT OF DUE PROCESS WHEN IT FAILED TO CHARGE AGGRAVATED ASSAULT AS A LESSER INCLUDED OFFENSE OF ATTEMPTED MURDER. (Not Raised Below)
THE MANDATORY GRAVES ACT EXTENDED TERM IMPOSED FOR ATTEMPTED MURDER VIOLATES DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS.
Following our consideration of defendant's legal arguments in light of the record and applicable legal precedent, we affirm his conviction and, as the result of improper merger, remand for resentencing.
The trial record in this matter discloses the following: On February 17, 2005, at approximately 5:25 p.m., the Jersey City police responded to a 9-1-1 call from Rashon Ponder, who stated that he had been shot. Ponder was found in his car at the curb in the vicinity of Atlantic and Bergen Avenues. He had been shot multiple times. Detective Kevin Guy asked Ponder if he knew who shot him. Ponder nodded his head yes, but refused to identify the shooter.
Shortly thereafter, paramedics arrived and, after examining Ponder, informed the police that he was likely to die from his wounds. When Ponder was informed of his status, he again refused to disclose the name of the shooter. However, on April 10, 2005, Ponder, who survived, disclosed to the police that his shooter was defendant. Ponder told the police that he had initially refused to identify defendant because he was "afraid of dying," that he was "still in shock" and that he was "afraid of [defendant]." Defendant was arrested on April 26, 2005.
One year after the shooting, on February 17, 2006, defendant's former girlfriend, Shamia Henderson, provided the police with additional corroborative evidence of defendant's identity, stating that in mid or late February, 2005, defendant had bragged to her that he had "handled business for his brother." "He shot up the guy or car." Henderson later learned that the victim was Ponder.
An investigation of the scene of the crime disclosed seven nine-millimeter bullet casings next to the passenger side of the car occupied by Ponder. No casings were found on the driver's side. Additionally, the police found four vials containing suspected cocaine in the street next to the passenger door. The police were unable to determine who possessed the vials. While in the emergency room, approximately $1,500 was found in Ponder's pockets.
Directly in front of the car driven by Ponder, the police found a Plymouth minivan with its engine running. Inside the minivan was a cell phone. At trial, the parties stipulated that the van and phone belonged to defendant.
Ponder was surgically treated for eighteen entry and exit gunshot wounds, spending twelve days in the hospital. He remains disabled by his injuries. Ponder received three wounds on the front of his right arm, three on the rear of his right arm, one in the armpit, one in the mid-chest, two in the upper right thigh, two in the lower right thigh, two in the upper left thigh, two in the lower left thigh, and one in the scrotal area. Bullets fractured his upper right arm and his left femur. Analysis determined that all of the bullets were fired from the same semi-automatic pistol.
According to Ponder, the shooting occurred after he became stopped in traffic. Defendant got out of his car, which was stopped in front of Ponder's, walked over to the passenger side of Ponder's vehicle, and started shooting through the open window. Ponder testified that he was able to guide his car to the curb, where it was found directly behind the minivan belonging to defendant. He then called 9-1-1, his son's mother and his cousin.
Ponder claimed that he had known defendant for more than ten years. When asked at trial if Ponder knew of any reason defendant would want to shoot him, Ponder replied that a week or a few days before, "[w]e had a little altercation, like, verbal dispute. That's it." Defendant told the police that, on March 25, 2005, after the shooting and after Ponder had been released from the hospital, Ponder (known by the street name of "Rock") and Ponder's brother, a person known as "Lemon," shot at him in a dispute over selling bricks of cocaine.
Following entry of a verdict against defendant on all three counts, defendant, a second-time Graves Act offender, was given a mandatory extended term sentence, N.J.S.A. 2C:43-6c, for attempted murder of thirty years, subject to NERA. N.J.S.A. 2C:43-6c. The judge supported the sentence by citing aggravating factors one (the nature and circumstances of the offense), three (the risk that defendant will commit another offense), six (the extent of defendant's prior record), and nine (the need for deterrence). N.J.S.A. 2C:44-1(a)(1), (3), (6), and (9). The judge found no mitigating factors. Merging the unlawful possession of a weapon charge into the charge of possession of a weapon for an unlawful purpose, the judge also imposed a concurrent sentence of ten years with five years of parole ineligibility on the latter.
Defendant first argues that reversible error occurred as the result of the prosecutor's statement in closing argument that Ponder did not immediately identify defendant to the police because of fear for the safety of his family. Specifically, the prosecutor argued:
You say, well, yeah, Mr. Conforti, but he was all -- he was all but left for dead. He thought he was dying. He said to you -- I submit to you his testimony was, I thought I was going to die, I thought I was dead. So why then wouldn't he say at the scene who shot him?
He has other concerns, ladies and gentlemen. It's not just him. If he were to die at the scene and tell them who shot him, who else does he have to worry about? The mother of his child? The child itself? . . .
Well, there's also someone else who knows something. And that's the defendant. The defendant knows that the victim saw him. Put yourself in the victim's position. Would you be anxious or able to jump up and say, the individual who's looking me in the eye right now that I know for ten years, Mitchell West, that's the one who shot me, that's the man who shot me? Or would you think about your family? I submit to you, you would think about your family because, if you thought you were going to die that day, you'd be damned concerned about your daughter or your son and their mother. You have to look at why.
Defendant argues that the prosecutor's comments were not supported by evidence at trial. In fact, although Ponder called his child's mother after he was shot, Ponder did not disclose their conversation, and he cited only to his own fear.
Although the defense claims that the issue was partially raised below, we analyze it by plain error standards, determining that a nonspecific objection, interposed after additional argument by defense counsel relating to Ponder's appearance on the stand, was insufficient otherwise to preserve the issue.
Remarks are permissible if they are legitimate inferences from the facts. State v. Perry, 65 N.J. 45, 48 (1974); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). Such inferences may not go beyond facts presented to the jury. State v. Farrell, 61 N.J. 99, 103 (1972). A prosecutor may only comment on the facts shown by or reasonably to be inferred from the evidence. There is no error so long as the prosecutor confines himself in that fashion. Ultimately, it is for the jury to decide wither to draw the inferences the prosecutor urged. State v. Carter, 91 N.J. 86, 125 (1982).
In the present case, we see no basis for the inference that was drawn by the prosecutor. The evidence suggested that the shooting was the result of a personal dispute between Ponder, defendant and their brothers over drugs. There was no evidence of any threat to other relatives, or that retribution on them would occur if Ponder identified defendant as his attacker.
However, we do not find that the prosecutor's statement was "of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2; State v. Macon, 57 N.J. 325, 335-36 (1971). We have held that "[g]enerally, if the defense does not object to the alleged improper remarks, those remarks will not be considered prejudicial," and that "the failure to object suggests that at the time defense counsel did not believe the remarks were prejudicial . . . ." State v. Atkins, 405 N.J. Super. 392, 401 (App. Div. 2009). Clearly, the failure to object deprives the court of an opportunity to take curative action. Ibid.
Here, the prosecutor's remarks were relatively fleeting in nature, and the trial judge instructed the jury that it was not to consider "[a]rguments, statements, remarks, openings, [and] summations" as evidence in the case. Further, the State presented additional evidence connecting defendant with the crime, including Ponder's testimony and the testimony of defendant's girlfriend, Henderson, that defendant had admitted to the crime. Additionally, the parties stipulated that defendant was in possession of the minivan left running in front of the car in which Ponder was shot, as well as the cellphone found in the van. Police testimony suggested that the minivan was connected to the shooting, since it was parked directly in front of Ponder's car, it had been left running, and it was unoccupied at the time of the police's arrival. Thus, substantial evidence was adduced at trial in support of defendant's conviction. See, State v. Feaster, 156 N.J. 1, 63-64 (1998) (holding under a plain error standard that the defendant was not denied a fair trial when "it was the weight of the evidence . . . that led to this capital murder conviction rather than the prosecutor's improper comments during summation.").
The result might be different if the error affected a key aspect of defendant's conviction. For instance, in State v. Frost, 158 N.J. 76 (1999) the Court reversed the defendants' convictions for drug-related crimes when the prosecutor's improper remarks related to the credibility of the testifying officers, and the "entire case rested on the testimony of the officers." Id. at 87. See also State v. Walden, 370 N.J. Super. 549, 561 (App. Div.), certif. denied, 182 N.J. 148 (2004) (reversing a conviction in a case in which the prosecutor improperly bolstered a witness's credibility in summation, when there was no eyewitness identification, no forensic evidence linking the defendant to the crime, and the witness's testimony "was critical to defendant's conviction."). But here, the issue of why Ponder was initially unwilling to identify defendant as the shooter, although professing to know the identity of his assailant, was peripheral to defendant's guilt. We thus find no plain error to have been presented.
Prior to trial, the prosecutor indicated that he intended to introduce at trial a statement against interest made by defendant to the police on March 25, 2005 following an incident in which defendant was fired upon. When asked who fired the shots, defendant stated that he believed that the perpetrators were "Lemon" and "Rock" (Ponder and his brother), with whom defendant had been having a dispute over the sale of bricks of cocaine. The trial judge permitted the statement to be used in a sanitized form that omitted any reference to drugs as the subject of the dispute. However, the statement was not introduced by the State at trial.
During the course of trial, however, the defense sought to cross-examine a police witness regarding the quantities of cash found on Ponder in the emergency room and to raise the inference that the money constituted proceeds from the sale of drugs. The defense argues that such evidence would have supported a claim of third-party culpability arising from a drug deal gone bad.
The trial judge precluded the line of inquiry, stating: "I'm telling you, you bring out that Mr. Ponder's a drug dealer to argue that somebody shot him over drugs, your defendant's statement over -- a beef with him over drugs is coming in. . . . You can't have it both ways."
While defendant claims that the judge's ruling improperly foreclosed cross-examination of the police witness, we view the matter otherwise. As the trial judge properly recognized, defense counsel's line of questioning would have opened the door to the admission of an unsanitized version of defendant's statement to the police regarding his dispute with Ponder over the sale of drugs, since that concept "operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context." State v. James, 144 N.J. 538, 554 (1996).
In his pro se brief, defendant challenges the trial judge's failure to give the jury a charge on the lesser-included offense of aggravated assault. In this regard, the following colloquy took place in court:
THE COURT: . . . . I have inquired as to whether or not you wish any lesser included, such as aggravated assault, serious bodily injury. And you have told me that you do not. Is that correct?
[DEFENSE COUNSEL]: That's correct. Can I have just a moment, Judge?
THE COURT: Sure.
[DEFENSE COUNSEL]: In this, the Judge is asking, the top count in the indictment against you is attempted murder.
THE DEFENDANT: Uh-huh.
[DEFENSE COUNSEL]: Now there is --there's a lesser -- there's also aggravated assault charges that are not in the indictment. We could -- we could put them in the charge for the jury to consider.. But --
(Off the record. Back on the record) (Jury not present in court)
[DEFENSE COUNSEL]: We're agreed, your Honor.
A defendant may be found guilty of a lesser-included offense if the lesser offense is established by proof of the same or less than all the facts required to prove the greater offense, if it consists of attempt or conspiracy to commit the greater offense, or if it involves a less serious injury than that required to convict on the greater offense. N.J.S.A. 2C:1-8(d); State v. Farrad, 164 N.J. 247, 264-65 (2000). For a lesser-included charge to be given, there must be "a rational basis" for a jury's acquittal of defendant on the greater charge and conviction on the lesser. State v. Brent, 137 N.J. 107, 117 (1994); see also State v. Mejia, 141 N.J. 475, 489 (1995) (discussing "rational basis"), overruled on other grounds, State v. cooper, 151 N.J. 326 (1997). For such a charge to be given sua sponte, the facts of the case must "clearly" indicate that there is a rational basis for the jury to convict on the lesser charge. State v. Thomas, 187 N.J. 119, 132 (2006); State v. Jenkins, 178 N.J. 347, 361 (2004). If the facts do not clearly raise the issue and there is no request, the trial judge need not meticulously sift the record for evidence to support the lesser charge. State v. Purnell, 126 N.J. 518, 540-41 (1992).
In order to prove attempted murder in this case, the State was required to demonstrate the defendant purposely or knowingly attempted to cause death or serious bodily injury resulting in death. N.J.S.A. 2C:11-3a. The jury was charged on the elements of that crime. Defendant argues that the trial judge erred in failing to charge the jury on aggravated assault pursuant to N.J.S.A. 2C:12-1b(1), which requires proof of an attempt to cause serious bodily injury to another, or proof that the defendant caused such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly caused such injury. He premises his argument on the position of the wounds, the fact that Ponder was left alive, and the fact that defendant survived. Defendant also argues that "[t]his was not a stranger-on-stranger crime and no attempt was made by the shooter to conceal his identity." The last argument, in our view, more clearly supports an intent to murder, since only if murder occurred could defendant avoid identification, possible retaliation and prosecution. Further, we are not persuaded by defendant's argument regarding the position of the wounds, given their excessive number*fn1 and the fact that one was directed to the chest and one was directed to the armpit. Although the others were not directed to vital organs, any could have caused death by severing an artery. We decline to view Ponder's fortunate survival as a clear indicator of the necessity for an aggravated assault charge, noting that the relevant issue was defendant's intent at the time of the shooting, not its eventual outcome. As a consequence, we find that a rational basis for an instruction on aggravated assault was not so "clearly" warranted as to result in reversible error when, in accordance with the wishes of defendant and defense counsel, it was not given.
Through counsel and in his supplemental brief, defendant challenges his sentence. At the outset, we note that defendant's conviction for unlawful possession of a weapon, N.J.S.A. 2C:39-5b, was improperly merged into defendant's conviction for possession of a weapon for an unlawful purpose because the unlawful purpose charge does not include the element of lacking a permit, contained in the charge of unlawful possession. State v. O'Neill, 193 N.J. 148, 163 n.8 (2007); State v. Gross, 216 N.J. Super. 92, 97 (App. Div.), certif. denied, 108 N.J. 194 (1987); State v. Cooper, 211 N.J. Super. 1, 22-23 (App. Div.), certif. denied sub nom. State v. Lawson, 105 N.J. 525 (1986) . Instead, the charge of third-degree unlawful possession should have remained intact, and because no broader purpose than murder was demonstrated for defendant's weapons possession, the second-degree charge of possession of a weapon for an unlawful purpose should have been merged with the charge of first-degree attempted murder. State v. Cook, 300 N.J. Super. 476, 490 (App. Div. 1996). Defendant's sentence on this count is thus vacated, and the matter is remanded for resentencing.
Because defendant was convicted of possession of a handgun for an unlawful purpose, because the jury was instructed that defendant's unlawful purpose was to shoot Ponder, and because the jury found defendant guilty of that charge, a proper basis was established for the imposition of a Graves Act extended sentence on the murder conviction. No Sixth Amendment violation occurred under standards established by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 2d 435, 455 (2000). The present case can be distinguished from State v. Franklin, 184 N.J. 516 (2005), upon which defendant relies, because in Franklin, defendant was acquitted of the weapons charge.
We additionally find no abuse of the trial court's discretion in his failure to cite mitigating factor four ("[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense") in sentencing. See N.J.S.A. 2C:44-1(b)(4). A mental evaluation conducted prior to sentencing disclosed that defendant was of borderline intelligence, scoring sixty-one on an intelligence scale. However, the examining psychologist was of the opinion that the score might "not be a valid measure of [defendant's] intellectual ability as throughout the interview, he appeared to . . . try to exaggerate deficits and other problems." The psychologist noted in this respect that defendant's "spontaneous speech before testing" was better and that during the intelligence assessment, defendant seemed to "exaggerate his verbal limitations."
After considering this evidence, the trial judge declined to cite defendant's mental condition as a mitigating factor. We affirm. The psychologist found that defendant suffered from "cognitive limitations," "character disorder and explosive temper," "expressive language difficulty,"*fn2 and an inability "to interact with others." He also found that defendant was "not a danger to self or to others." As such, the diagnoses did not rise to such a level that would "excuse or justify the defendant's conduct" as required by statute and illustrated by cases in which the mitigating factor was found to exist. See, e.g., State v. Jarbath, 114 N.J. 394, 414-15 (1989) (mitigating factor applied to defendant who was mentally retarded and diagnosed as psychotic); State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998) (recognizing that mitigating factor applied, even though jury rejected insanity defense, where defendant had previously suffered three head injuries and there was expert testimony that he was insane at the time the crime was committed); and State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002) (recognizing applicability of mitigating factor to defendant, who was convicted of killing her ex-husband, upon evidence that she suffered from post-traumatic distress disorder, consistent with and related to severe and chronic spousal abuse).
As a final matter, we do not find the extended sentence imposed upon defendant for the attempted murder to have been manifestly excessive or unduly punitive under guidelines established by State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); and State v. Roth, 95 N.J. 334 (1984).
Defendant's conviction is affirmed. The matter is remanded for resentencing on the weapons counts.