June 4, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES DAWSON A/K/A MALIK HOWARD A/K/A ALLAN LANGLEY A/K/A MALIK WILSON A/K/A JAMES WILSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2689.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2009
Before Judges Axelrad, Fisher and Espinosa.
Defendant was indicted on charges arising from the shooting death of Corey Jamison and the shooting of Nathaniel Williams. He was convicted of aggravated assault, N.J.S.A. 2C:12-1(b)(1); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and now appeals from his convictions and sentence. We affirm.
On August 7, 2005, Corey Jamison was shot and killed outside the Jetaway Lounge in Newark.
On November 14, 2005, the grand jury indicted defendant as follows: first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four).
On the evening of his death, Jamison visited the Jetaway Lounge with his girlfriend, Cirita Lee, and her cousin, Charles Judd. As midnight approached, Judd was asked to come and get Jamison because he was "bugging out" and acting rowdy but Jamison kept walking away from him. Judd and Lee were standing outside, near a parking lot behind the bar, talking, when Jamison walked out of the bar. Lee asked him what was wrong, but Jamison walked past them, around the corner. Both Judd and Lee were still at the rear of the bar, talking, when they heard gunshots. He and Lee went to Jamison, who was shot in the leg and the back. Lee held Jamison, crying, while Judd called 9-1-1. Judd did not see who fired the shots and did not observe Jamison in any arguments that evening.
Darryl Cauldwell was standing across the street from the Jetaway when he saw two African-American men arguing outside the Jetaway's side entrance. He did not hear what the argument was about. He identified defendant as one of the men arguing and testified that he saw defendant coming toward the other man, pointing either a finger or a gun. Cauldwell heard approximately three gunshots and ducked behind a parked car. He fled the scene on a friend's bicycle.
Nathaniel Williams was walking past the Jetaway on his way home from his girlfriend's house around midnight that evening when he observed two African-American males arguing near the side entrance. He heard gunshots and started to run away, but was shot in the left foot. When he realized that he had been shot, Williams returned to the scene. He identified defendant as the man who fired the shots that evening. At trial, Williams admitted to using heroin and cocaine at approximately 11:30 a.m. the morning before the shooting but testified it did not affect his perception of the incident.
Williams also testified that, after the gunshots were fired, he saw a slim African-American female, whom the State argued was Lee, and heard her screaming, "Eli's got a gun." However, both Judd and Cauldwell testified that they did not hear anyone yell that phrase.
Dr. Zhang of the Regional Medical Examiner's Office testified to the results of the autopsy he performed on Jamison's body. He stated that Jamison was shot in the back and in his leg from a distance beyond two and one-half feet. Dr. Zhang testified that Jamison bled to death as a result of the gunshot wounds.
An arrest warrant was issued for defendant on August 9, 2005 but police were unable to locate him at his residence, his family members' residences or his place of employment, Coach Bus Company. Employment records reflected that defendant reported to work on August 6, 8 and 9, 2005. However, when interviewed, defendant's employer stated that defendant had called in and requested family leave, saying he was still distraught over the murder of his brother, Anthony (also known as "Eli"), approximately one month earlier. Defendant never returned to work.
Defendant surrendered to police on August 31, 2005, after retaining his attorney. Police officers observed a tattoo, "Eli," on his right arm.
The timing of defendant's surrender was an issue discussed both in testimony at trial and in the prosecutor's summation. His surrender came four days after the death of Cirita Lee. Prior to trial, the prosecutor advised the court that she had been murdered on her front steps by an unknown assailant and sought to introduce such facts at trial. The trial court directed the prosecutor not to present any evidence as to the cause of death but permitted evidence that she was dead, rather than unavailable. The prosecutor elicited the following testimony from Detective Christopher Smith of the Essex County Prosecutor's Office:
Q: What day did she [Lee] die?
A: August 27, 2005.
Q: When did you stop looking for the defendant, James Dawson?
A: We initially - -
Q: Let me rephrase. Did he surrender himself?
Q: What date?
A: August 31, 2005.
Q: Is it correct to say that you and the Newark Police Department were unable to locate James Dawson from the time of the shooting, from the time that he was identified or warrants were issued for his arrest until he surrendered himself at his attorney's office?
A: That's correct.
Defense counsel objected to this testimony on the following day of trial, arguing that any information relating to Lee was extremely prejudicial. Counsel asked the court to prohibit the prosecutor from mentioning her death again during the trial. The prosecutor maintained that he had abided by the court's earlier instructions and also stated that the information regarding Lee's death was presented to rebut defense counsel's accusation in his opening argument that the police investigation was shoddy. The judge denied defendant's request for a curative instruction, ruling that the prosecutor had stayed within the pretrial guidelines and that the questioning was not prejudicial.
During the direct examination of homicide detective Morad Muhammed, defendant made a motion in limine to preclude the prosecutor from discussing the date of Lee's death. The court denied the application, reasoning the date of death had already been testified to and it was not unfairly prejudicial. Detective Muhammed was then permitted to testify that she became aware that Lee died only a few days before defendant's surrender. Over defendant's objection, Muhammed also testified that Lee had given police a statement and was "shown a photograph."
Defendant also presented evidence to explain the timing of his surrender. His mother, Anna Dawson, testified that defendant was at her home with his girlfriend, Tieta Elamine, the evening that Jamison was murdered. She stated that her other son, Anthony Eli Dawson, was known as "Eli" and had been murdered a few weeks prior to the Jetaway shooting. She stated that defendant got the tattoo, "Eli," in his brother's memory. According to Ms. Dawson, the police did not contact her when they were looking for defendant. She learned that they were looking for him from her mother the Thursday after the shooting. She stated that she told defendant about this when he returned from work; that he wanted to turn himself in, but she persuaded him not to do so because of prior bad experiences with the police. She also stated that she encouraged him to stop reporting to work so that the police would not be able to locate him there. Elamine corroborated Ms. Dawson's testimony regarding the alibi, the tattoo, and the fact that Ms. Dawson persuaded defendant not to surrender. She did acknowledge that the police had contacted her when they were seeking defendant but was unclear as to whether she had advised them that defendant was with her at the time of the murder.
During his summation, the prosecutor offered a timeline of events that included the dates of Lee's death and defendant's surrender and then argued that defendant knew the police were searching for him and remained in hiding "until the person who he knew was with the dead person is no longer around." Defense counsel objected. The trial court sustained the objection, reasoning, "[t]here is no evidence in this case that indicates that the defendant in this case knew anything with respect to the death of Cirita Lee." The prosecutor then concluded, "I suppose you will have to determine whether it's just coincidence that that's the day he determines he's going to turn himself in, was [sic] August 31st when he wouldn't turn himself in, the 26, the 25, the 24, the 23rd, the 22nd, the 21st."
Defense counsel again objected, arguing the prosecutor's reference to Cirita Lee suggested defendant was involved in her death and was thus extremely prejudicial. Defense counsel requested an instruction that prohibited the jury from considering the date of surrender with reference to the date of Lee's death. The court sustained the objection and immediately instructed the jury, "There is no evidence in this case that indicates that the defendant in this case knew anything with respect to the death of Cirita Lee." The court also included the following in its charge:
Now, ladies and gentlemen of the jury, there was some testimony and argument in this case with respect to inferences that might be drawn as to the sequence of dates and Mr. Dawson's surrender in this case.
I tell you right now, that plays no role whatsoever in your determination in this case. You may make no inferences whatsoever as to the sequence of [the] date of surrender. You may not draw any conclusion with respect to that on either side. It will play no role whatsoever in your determination.
The jury acquitted defendant of first-degree murder and second-degree aggravated assault but found him guilty of the lesser-included offense of third-degree aggravated assault of Nathaniel Williams (count two). Defendant was also found guilty of the two weapons offenses (counts three and four). Defendant was sentenced to concurrent terms of imprisonment of four years on count two; four years on count three; and to an extended term of twelve years, with six years minimum parole eligibility on count four pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), and appropriate fines and penalties.
In this appeal, defendant raises the following issues:
THE COURT ERRED BY ALLOWING AN EXCITED UTTERANCE TO BE TESTIFIED TO.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE ELICITATION OF TESTIMONY INFERRENTIALLY CONNECTING THE DEFENDANT WITH OTHER CRIMINAL CONDUCT.
THE PROSECUTOR COMMITTED MISCONDUCT IN SUMMATION. (NOT RAISED BELOW).
THE PROSECUTOR USURPED THE FACT-FINDING CAPACITY OF THE JURY DURING SUMMATIONS. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
THE TRIAL COURT IMPERMISSIBLY CONSIDERED AN AGGRAVATING FACTOR. (NOT RAISED BELOW).
BECAUSE PETITIONER'S SENTENCE IS ABOVE THE FORMER PRESUMPTIVE SENTENCE, HE SHOULD BE RE-SENTENCED PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005).
After carefully reviewing the record and the arguments of counsel, we conclude that none of these arguments have merit.
In Points II and III, defendant argues that the State presented testimony and argument that inferred that he was responsible for the murder of a key prosecution witness, Cirita Lee. This argument is utterly unsupported by the record.
First of all, no evidence of "other criminal conduct" related to Lee's death was presented. The jury never learned that Lee was murdered, only that she had died. As the trial court correctly concluded, the fact that she had died was properly admitted to explain her absence from the trial. Such explanation was appropriate, if not necessary, to counter defense arguments that the prosecution had conducted only "a shoddy, incomplete" investigation and failed to call other witnesses with knowledge of the facts. Defendant's argument regarding supposed evidence of "other criminal conduct" does not cite a single statement that characterized Lee's death as a homicide or linked defendant in any way to her cause of death. In his brief, defendant identifies the scant evidence upon which he rests this argument:
[O]n direct examination, Detective Smith told the jury that Cirita Lee was dead. He stated that he learned of her death on August 27, 2005. This was approximately three weeks after her boyfriend had been shot and killed. It was also not long after her death that the defendant surrendered himself to police, on August 31, 2005.
These facts, considered without the additional fact that Lee was murdered, provide no basis for "an inference that the defendant may have been responsible for her death and only surrendered once she had been terminated," as defendant argues. We note further that, as the trial court found, this evidence fell within the parameters the trial court established, that the State could present the fact of Lee's death and not its cause.
Defendant makes a similar argument regarding a portion of the prosecutor's summation. Although defense counsel vigorously pursued efforts to restrain the prosecution's references to Lee's death and objected to perceived violations of the trial court's rulings on this issue, there was no objection to the comments complained of now at trial. Therefore, the plain error standard applies to this argument. R. 2:10-2; State v Taffaro, 195 N.J. 442, 454 (2008); State v. Afanador, 151 N.J. 41, 54 (1997).
Defendant challenges the prosecutor's review of the chronology of events that included reference to defendant's surrender after Lee's death on a date when, the prosecutor suggested, "defendant thought it would be appropriate for him to now face the music." Again, there was no reference in the prosecutor's remarks to Lee's cause of death and no accusation that defendant was responsible in any way for her death. These comments do not support defendant's characterization, that they "were simply designed to convey to the jury that the defendant perhaps killed Cirita Lee in an attempt to prevent her from testifying against him."
The point that could be made from this evidence and the prosecutor's argument is that defendant's surrender after a key witness died reflects a consciousness of guilt and the weight of the evidence against him. In fact, if defendant knew that Lee died before he decided to surrender, that fact plainly would have been relevant for that purpose. There was no evidence that he had such knowledge, however. The trial court appropriately responded by carefully instructing the jury of that fact during the trial and supplementing the charge with an instruction that the chronology of these events should play no role in the jury's deliberations. We presume that the jury followed such instructions. State v. Winder, 200 N.J. 231, 256 (2009); State v. Manley, 54 N.J. 259, 270 (1969). Therefore, the net effect of the evidence was to provide an explanation for the State's failure to present a key witness at trial, an evidentiary decision that was well within the discretion of the trial court and entitled to our deference. See State v. Morton, 155 N.J. 383, 453 (1998).
Defendant makes an additional allegation of plain error in the prosecutor's summation, based upon the prosecutor's comments that defendant's mother lied to the jury and the police.
Prosecutors are "expected to make vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), and "are afforded considerable leeway in that endeavor." State v. Jenewicz, 193 N.J. 440, 471 (2008). However, a prosecutor may not express a personal belief or opinion as to the truthfulness of a witness's testimony. State v. Marshall, 123 N.J. 1, 154 (1991); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). In reviewing these comments, we "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991).
In this case, defense counsel told the jury that the State's case was based on Nathaniel Williams and Darryl Cauldwell. He charged that Darryl Cauldwell was lying and stated that Nathaniel Williams "repeatedly and consistently lied and purposely and intentionally and consistently lied under oath to every single person that has come in contact with him[.]" Defense counsel's pointed expressions of belief that the prosecution witnesses lied did not give license to the prosecutor to do the same. However, defense counsel's conduct is relevant to the determination whether the prosecutor's comments amounted to prejudicial error. Young, supra, 470 U.S. at 12, 105 S.Ct. at 1045, 84 L.Ed. 2d at 11. Within this context, we "consider the probable effect the prosecutor's response would have on the jury's ability to judge the evidence fairly." Ibid.
Anna Dawson provided an alibi for her son, testifying that he was at her home, with his girlfriend, the night of the shooting. Despite this knowledge, she also testified that she did not approach the police and dissuaded her son from doing so because she did not trust the police. She further admitted that she persuaded defendant to stop going to work to elude arrest. Taking these statements from her point of view, Ms. Dawson was committed to withholding the truth from the police, even though she had proof of her son's innocence, and instead preferred to counsel him to elude arrest. Under these circumstances, the prosecutor's accusation that she lied had little potential to divert the jury from a fair assessment of the evidence.
In evaluating the potential prejudice from the prosecutor's statements, we also note the failure of defense counsel to object. To justify a reversal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996)) (internal quotations omitted). The absence of a contemporaneous objection suggests "that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 576. The failure to object also deprives the court of the opportunity to take appropriate curative action. As a general rule, such unchallenged comments will not be deemed to be prejudicial. Ibid.
The comments made by the prosecutor here were not inflammatory, highly emotional or likely to distract the jury from a fair consideration of the evidence of guilt. See Marshall, supra, 123 N.J. at 161. The comments fall far short of the standard of "conduct . . . so egregious that it deprives the defendant of a fair trial" necessary to establish plain error. State v. Loftin, 146 N.J. 295, 386 (1996); see also State v Wakefield, 190 N.J. 397, 453 (2007); Frost, supra, 158 N.J. at 83.
We find the remaining arguments advanced by defendant in Points I, V, VI and VII to lack sufficient merit to warrant discussion in a written opinion beyond the following comments.
Defendant argues that the trial court erred in admitting an "excited utterance," i.e., Williams's testimony that Lee had shouted, "Eli's got a gun" at the time of the shooting. The trial court conducted a hearing pursuant to N.J.R.E. 104 and determined that the statement was made by a woman cradling the wounded victim within reasonable proximity to the shooting. The court ruled that the statement was admissible pursuant to N.J.R.E. 803(c)(2), which defines an excited utterance as "[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." The trial court's conclusion on this evidentiary issue was well within the exercise of its discretion and will not be disturbed on appeal. Morton, supra, 155 N.J. at 453.
Defendant's challenges to his sentence also lack merit.
The trial court found three aggravating factors, N.J.S.A. 2C:44-1(a)(3), (6) and (9). Defendant now asserts, as plain error, that the trial court improperly considered an unidentified "aggravating factor." This argument rests upon a mischaracterization of the trial court's statement of reasons as "holding the defendant responsible for the death of Corey Jamison" despite his acquittal on the murder charge. The court's comments were, in fact, appropriately focused on the defendant's responsibility for carrying a gun in circumstances that proved dangerous, conduct for which defendant was convicted.
It is undisputed that, as a persistent offender, defendant satisfied the criteria for the imposition of a discretionary extended term. N.J.S.A. 2C:44-3(a). As a result, the range of sentence for defendant, convicted of a second-degree crime, was five to twenty years imprisonment. N.J.S.A. 2C:43-7a(3). In addition, because defendant was convicted of an offense that involved the use of a handgun, the court was required to impose a period of parole ineligibility that was the greater of: three years or one-third to one-half of the sentence imposed.
N.J.S.A. 2C:43-6(c). The trial court thoughtfully engaged in a qualitative analysis of pertinent factors, including defendant's employment history; the fact that he had obtained a GED; and his criminal history, including not merely the facts of convictions but the escalating nature of defendant's criminal involvement. The imposition of an aggregate sentence of twelve years imprisonment with a six-year period of parole ineligibility was neither illegal nor excessive and did not offend the principles of State v. Natale, 184 N.J. 458 (2005). Rather, it reflected an exercise of discretion by the trial court pursuant to a deliberative process that is entitled to our deference. See State v. Dalziel, 182 N.J. 494, 504-05 (2005); State v. Megargel, 143 N.J. 484, 493 (1996).
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