September 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY MARTIN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-10-0466.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Graves and Grall.
Defendant Anthony Martin was charged with various offenses in a twelve-count indictment. His trial commenced on June 6, 2007, and the court granted a judgment of acquittal on counts three, five, six, nine, and twelve at the end of the State's case pursuant to Rule 3:18-1. The jury returned a verdict of not guilty on counts one, seven, and eight but the jury returned a guilty verdict on four counts of the indictment: fourth-degree aggravated assault for recklessly causing bodily injury to Stephen Fultz with a deadly weapon, N.J.S.A. 2C:12-1(b)(3) (count two); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third-degree attempt to cause bodily injury to Tyson Jacobs and Chuckie Epps, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:12-1(b)(2) (counts ten and eleven). Defendant was sentenced to a seven-year prison term on count four, with concurrent three-year terms on counts ten and eleven, and a concurrent nine-month term on count two. The court also imposed concurrent three-year prison terms on two violations of probation charges, which defendant pled guilty to.
On appeal, defendant presents the following arguments:
THE INTRODUCTION OF AN INCULPATORY, OUT-OF-COURT STATEMENT OF A NON-TESTIFYING WITNESS DEPRIVED MR. MARTIN OF HIS RIGHTS TO DUE PROCESS OF LAW AND CONFRONTATION. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.) (Not Raised Below).
THE PROSECUTOR VIOLATED MR. MARTIN'S RIGHT TO A FAIR TRIAL BY TELLING THE JURY THAT MR. MARTIN WAS INCARCERATED, AND THE COURT'S INSTRUCTION TO THE JURY TO DISREGARD THE STATEMENT BECAUSE "THE REASON ANYONE MAY HAVE BEEN IN JAIL IS NOT ASSOCIATED WITH THIS CASE" FURTHER PREJUDICED MR. MARTIN.
THE COURT ERRED BY ADMITTING INTO EVIDENCE TWO NON-PROBATIVE, PREJUDICIAL PRIOR BAD ACTS, DEMONSTRATING MR. MARTIN'S BAD CHARACTER.
MS. [AMBROSI'S] LAY OPINION THAT MR. MARTIN TRIED TO SHOOT MR. JACOBS WAS INADMISSIBLE UNDER N.J.R.E. 701 AND INVADED THE PROVINCE OF THE JURY. (Not Raised Below).
THE TRIAL COURT'S INSTRUCTION ON CRIMINAL ATTEMPT WAS INADEQUATE. (Not Raised Below).
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Based on our review of the record and the applicable law, we have concluded that all of defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion with the exception of the issues raised in Points I and II. R. 2:11-3(e)(2). We therefore affirm defendant's convictions and his sentence with only the following comments.
On January 7, 2006, Denise Ambrosi, Lanisha Hall, and Whitney Johnson, were visiting with defendant, Tyson Jacobs, and Chuckie Epps at the apartment of Jacobs and Epps on Walnut Street in Penns Grove, New Jersey. The group was talking, eating, and drinking, and at some point defendant left the apartment and returned with his two cousins. Jacobs did not know the cousins, and he got into an argument with defendant's shorter cousin. As the argument escalated, the two men agreed to "take it outside," and everyone followed them out. After the two men began fighting, and Jacobs had the upper hand, the taller cousin entered the fray followed by Epps, who joined in to assist Jacobs.
While the four men were fighting, defendant pulled out a gun and fired a shot into the air. Jacobs and Epps then ran back to the apartment building with defendant and the taller cousin in pursuit. Upon entering the apartment building, Jacob and Epps were able to lock the outside door before running upstairs to their apartment. When defendant was unable to enter the apartment building, he fired two shots at the outside door and one of those bullets inadvertently grazed the arm of Steven Fultz, who was standing in the downstairs hallway. At that point, Denise Ambrosi and Lanisha Hall, who had witnessed the entire incident, attempted to confront defendant but he immediately left with his two cousins.
During the course of the police investigation, Ambrosi, Hall, and Epps each identified defendant as the shooter from photographic arrays. In addition, Ambrosi and Hall positively identified defendant as the shooter in court.
Defendant did not testify or call any witnesses on his own behalf. During summations, defense counsel argued that the State's proofs were insufficient to establish defendant's guilt because Chuckie Epps, who recanted his identification of defendant as the shooter, "testified in the negative for the State"; Lanisha Hall "was so drunk she didn't know what was going on"; and the testimony by Denise Ambrosi was not trustworthy. In contrast, the prosecutor argued that the testimony of Steven Fultz was consistent with the testimony of Ambrosi and Hall, and their testimony was consistent "from beginning to end."
In his first point, defendant contends he was deprived of his right to confront and cross-examine an adverse witness when portions of a written statement that Whitney Johnson gave to the police were read to the jury by Detective William Cobb. On direct examination, Cobb testified that he had interviewed Denise Ambrosi, Lanisha Hall, and Whitney Johnson and their statements were consistent. During cross-examination, defense counsel sought to show that the witness statements contained some inconsistencies, and Cobb testified the statement given by Johnson was "[m]ore or less consistent" with the statements of Ambrosi and Fultz. On redirect, the prosecutor had Cobb read portions of Johnson's statement to the jury.
Although Johnson did not testify at defendant's trial, the State contends that her statement was admissible because it was only offered "to rebut assertions of fabrication and inconsistencies" and not to prove the "truth of the matter asserted." We cannot agree. In our view, the admission of Johnson's statement violated defendant's "Sixth Amendment right to be confronted by witnesses against him." State v. Bankston, 63 N.J. 263, 269 (1973); State ex rel. J.A., 195 N.J. 324, 343 (2008). Nevertheless, based on the eyewitness testimony of Ambrosi and Hall, which was corroborated by evidence of the two bullet holes in the front door of the apartment building, and the testimony of Steven Fultz, who was accidentally struck by one of the bullets, it is clear that the admission of Johnson's statement was harmless beyond a reasonable doubt. R. 2:10-2; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710-11 (1967); State v. Macon, 57 N.J. 325, 340 (1971).
In his second point, defendant contends the prosecutor violated his right to a fair trial by telling the jury that he was incarcerated. Defendant's argument must be viewed in light of the following colloquy, which took place while the prosecutor was questioning Chuckie Epps on redirect, after Epps recanted his initial statement to the police and the prosecutor received permission to ask him leading questions pursuant to N.J.R.E. 611(c).
[PROSECUTOR]: Mr. Epps, do you have a criminal record?
[PROSECUTOR]: Were you in jail at any time over the past 12 months in the Salem County Correctional Facility?
A: It was a while back. I'm not sure how long it was.
[PROSECUTOR]: Were you in jail at the same time Mr. Martin was in the Salem County Correctional Facility?
[DEFENSE COUNSEL]: Objection, Your Honor. I think I'd like to --
THE COURT: Sustained.
THE COURT: Sustained. I'd ask the jury to disregard that. The reason anyone may have been in jail is not associated with this case, not proper. I would ask you to disregard that. Next question.
We recognize, of course, "that prosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial."
State v. Frost, 158 N.J. 76, 83 (1999). In determining whether a prosecutor's misconduct warrants a new trial, "an appellate court must consider: (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Ibid. In this case, we conclude that the improper question by the prosecutor was not "clearly capable of producing an unjust result," Rule 2:10-2, because there was a prompt objection to the question; the jury was instructed to disregard the question; and the evidence of defendant's guilt was overwhelming.
Defendant also challenges his sentence. However, based on our review of the record, we are satisfied the court correctly applied the sentencing guidelines, the sentence imposed is not manifestly excessive or unduly punitive, and it does not constitute an abuse of discretion. State v. Roth, 95 N.J. 334, 364-66 (1984).
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