September 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES J. GAMBLE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-09-1483.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 26, 2010
Before Judges Axelrad and Sapp-Peterson.
Defendant was convicted of conspiracy to commit the murder of Terry Jackson (Jackson), N.J.S.A. 2C:11-3(a) and 2C:5-2 (Count One); murder, N.J.S.A. 2C:11-3(a) (Count Two); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (Count Three). Defendant was sentenced to life imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). We affirm.
On appeal, defendant raises the following the points:
THE REFERENCES TO DEFENDANT'S MEMBERSHIP IN THE BLOODS STREET GANG WERE IRRELEVANT AND HIGHLY PREJUDICIAL AND ADMITTED IN VIOLATION OF N.J.R.E. 404(b). ALSO THE FAILURE OF THE JUDGE TO DELIVER A LIMITING INSTRUCTION DEPRIVED DEFENDANT OF A FAIR TRIAL.
A. THE EVIDENCE OF DEFENDANT'S ASSOCIATION WITH THE BLOODS STREET GANG SHOULD NOT HAVE BEEN ADMITTED.
B. THE COURT'S FAILURE TO GIVE [A] LIMITING CHARGE ON THE USE OF THE N.J.R.E. 404(b) EVIDENCE DEPRIVED DEFENDANT OF A FAIR TRIAL.
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VI[OL]ATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW).
THE JUDGE ERRED IN ALLOWING, OVER OBJECTION, PHOTOGRAPHS OF THE VICTIM'S CHILDREN[,] FOUND IN THE VICTIM'S WALLET, TO BE ADMITTED INTO EVIDENCE.
EVIDENCE CONCERNING HOW DEFENDANT CAME TO BE HOUSED WITH SEAN LEWIS IN THE COUNTY JAIL WAS IRRELEVANT AND VERY PREJUDICIAL AND THE JUDGE ERRED IN OVERRULING DEFENSE COUNSEL'S OBJECTION.
THE LI[F]E SENTENCE IMPOSED ON MR. GAMBLE WAS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.
The State's theory of the case asserted that animosity existed between Gamble and Jackson, and that Gamble shot Jackson as a result. That theory was advanced through the testimony of Jackson's cousin, Betty Ann Gadson (Gadson). She testified that during the afternoon of April 24 around 4:30 p.m., she was waiting for her daughter's school bus when a "boy" named Raphael approached her and asked whether she wanted to smoke. She told him "yes," but before they could do so, defendant, along with another individual, joined them and defendant said, "don't smoke with her, she's the enemy, don't smoke with her[.]" Raphael told defendant to leave her alone, but defendant continued to "act like he was angry at [her], like if [she] did something to him[.]" The argument escalated into a fight, with others holding defendant back. At that point, defendant told her to "go get your cousin Terry"... "and then that's when [defendant] pulled up his shirt and he had a gun on him and the gun was silver." Defendant did not tell her why he wanted Terry but "started yelling, go get your cousin, this is for your cousin, you know, just go get Terry, go get Terry." Gadson testified that she then ran upstairs and called the police and her cousin Terry. She told police "there's this guy out here, he's got a gun, and he's, you know, bothering me[.]" She told police the person was named Bundles, the name by which she knew defendant. Gadson told the jury that she believed defendant was angry with her because she was related to Terry and also because she had been present days earlier when Terry and his friends confronted defendant about something they thought defendant had said about Terry, an allegation that defendant denied during the confrontation. Other than Gadson's testimony about the earlier incident involving defendant and Jackson, there was no other evidence before the jury that pointed to any motive defendant may have had to murder Jackson. The defense theorized that Jackson's murder may have been drug-related since a bag of crack cocaine was found in his hand when police discovered his body.
During the morning of July 24, several hours before his confrontation with Gadson, defendant had been involved in a domestic dispute with his girlfriend, Jessica Torres (Torres). Defendant had pulled out a silver gun and pointed it at her. She immediately left and went to the home of her mother. When she reached her mother's home, defendant had already arrived and the argument continued. Defendant started hitting her, prompting her brother to call the police. When they arrived, defendant had already gone outside. Torres did not tell the police about the gun defendant had pointed at her. When they subsequently spoke to defendant outside, he told them his name was Bundles and provided police with his cell phone number. That same cell phone number was linked to a phone found by April Carroll (Carroll) around 10:00 p.m. that night while she was walking, not far from the area where the victim's body was later discovered. The next day, after learning that something had happened to Jackson, she took the phone to Jackson's cousin, Shana Creadle, who she knew because the phone was ringing "different people's names from the family so I just thought, you know, maybe it was hers, you know, his or whatever, somebody's, in that, you know, situation."
At about the same time that Carroll found the cell phone, defendant was at the apartment of a friend, William Askew (Askew), who was living with his aunt. Defendant told Askew that he had been involved in a shooting. He explained to Askew that he had a nine millimeter gun and was able to fire two shots before the gun jammed, at which time he told his friend, Raphael Powell (Powell), who was with him, to shoot the person at whom he had been shooting. Defendant also told Askew that he had dropped his phone when he was running after the shooting and hoped that police would not find it.
Defendant later ended up at the home of Tomia Fish (Fish) around 3:00 a.m. on the morning of August 25, where he slept on a loveseat. Around 10:00 a.m., a neighbor knocked on Fish's door and, upon entering, had a copy of a newspaper reporting Jackson's death. Defendant attempted to convince Fish that he had been at her home since 8:00 p.m. the previous evening.
Two months later when co-defendant Isiah Thomas (Thomas), who had been with defendant on the evening of Jackson's death, and Askew were all incarcerated at the Ocean County Jail, defendant and Thomas learned that Askew had told police about the night they came to his apartment. They confronted Askew, accusing him of being a "snitch" and made threatening comments to him. In addition, a year later, in October 2007, defendant told his cellmate, Sean Lewis (Lewis), that he had killed Jackson, but when Lewis later told him Thomas claimed he had killed Jackson, defendant became angry that Thomas was taking credit for his "stain," meaning his kill.
Notwithstanding this evidence, there three references to defendant's affiliation with the Bloods, beginning with Gadson when she called police after her confrontation with defendant during the afternoon of August 24 and told them that defendant was a member of the Bloods. The court overruled defense counsel's objection to this testimony, finding that it was relevant. The court offered to give a curative instruction, which defense counsel declined. Officer William Allen testified, without objection, that on the evening of the murder, he responded to a call that someone was being chased by members of the Bloods. Lewis testified, over objection from defense counsel, that while he and defendant were cellmates, defendant attempted to recruit him for the Bloods and that defendant explained to him how the organization worked, including that eventually Lewis would probably have to kill someone, at which point defendant told Lewis that he had killed Jackson. In overruling defense counsel's objection to this testimony, the court reasoned that "while [the conversation] may give reference to a prior bad act or an inference of gang-related activity, I believe that it's not [N.J.R.E. 404(b)] type of evidence that's objectionable because it goes to plan, scheme[,] as well as it really is res gestae of the conversation in the setting." The court did not provide a limiting instruction.
Defendant argues that the references made to his involvement with the Bloods constituted inadmissible other-crimes evidence and the court's failure to offer a limiting instruction had a prejudicial impact which deprived defendant of his right to a fair trial. We agree that two references to defendant's gang affiliation were improper but disagree that the testimony of Lewis was improper.
First, we address Lewis' testimony regarding his discussion with defendant while they were cellmates. This testimony was relevant and probative of the circumstances that led defendant to tell Lewis that he had killed Jackson. Defendant's admission to Lewis that he had killed Jackson was separately admissible, substantively, as an admission under N.J.R.E. 803(b). Lewis claimed that defendant was attempting to recruit him to become a member of the Bloods and told him that eventually he would probably have to kill someone. Defendant's admission that he had killed Jackson placed into context defendant's recruiting pitch to Lewis and explains why defendant would tell Lewis what he had done. Without this additional testimony explaining the context during which the admission was made, the State was deprived of the opportunity to rebut the defense's portrayal of Lewis as a jailhouse snitch trying to improve his circumstances for any of his pending criminal charges. Therefore, the probative value of this testimony outweighed the prejudice to defendant in admitting this testimony. N.J.R.E. 403. Lewis' credibility was attacked by portraying him as a jailhouse snitch. The entire circumstances of the conversation between the two men, if the jury believed Lewis' testimony, demonstrated that it was defendant who approached Lewis rather than Lewis approaching defendant in an effort to curry favor with the State in connection with his own charges. Thus, we discern no error on the part of the trial court admitting this evidence.
We agree that the remaining two references to defendant's gang affiliation were improper. Apart from its unduly prejudicial nature, the evidence was not relevant to any material issue before the jury, which is the threshold question that must be answered prior to determining the other factors that must be satisfied before introducing evidence of prior bad acts. State v. Cofield, 127 N.J. 328, 338 (1992) (holding that the evidence of other crimes must first be admissible as relevant to a material issue).
As noted earlier, the State's theory of the case was the animosity that existed between defendant and Jackson and that defendant shot Jackson as a result of this animosity. There was no evidence that the animosity was gang-related. Moreover, despite the court's ruling, the State did not proffer this evidence as bearing upon plan or scheme, factors the court considered in overruling defendant's objections.
Nor do we agree that the evidence of defendant's gang affiliation was res gestae evidence. Res gestae is defined as "evidence of events that take place during the same time frame as the crime charged in the indictment" and "will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Neither Gadson's reference to defendant as a member of the Bloods, nor Officer Allen's testimony that police received a report that members of the Bloods were chasing someone, placed into context Jackson's murder or presented a full picture of the crimes committed.
Any error brought to the court's attention during trial does not require reversal unless it constitutes harmful error, that is, it raises a reasonable doubt that the error contributed to the jury's verdict. R. 2:10-2. State v. Macon, 57 N.J. 325, 338 (1971). Analyzed under this standard, we find no harmful error.
First, defendant did not object to Officer Allen's testimony. "A claim of error which could have been but was not raised at trial will not be dealt with as would be a timely challenge" and "it may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." Macon, supra, 57 N.J. at 333.
Further, although the court erred in overruling defense counsel's objection to Gadson's testimony, the court twice offered to give the jury a cautionary instruction related to this aspect of Gadson's testimony and defense counsel declined. As noted earlier, there was significant evidence before the jury, separate and distinct from any references to defendant's gang affiliation, from which the jury could reasonably conclude, beyond a reasonable doubt, that defendant committed the crimes with which he was charged. Under these circumstances, the Gadson's reference to defendant as a member of the Bloods did not have the capacity to cause the jury to reach an unjust result. R. 2:10-2.
Defendant argues the court erred in charging the jury that defendant is presumed innocent "even if he chooses not to testify[,]" and that the charge resulted in plain error. We disagree.
Defendant did not object to the charge at the time it was given. Therefore, any error in the court's instruction related to defendant's right to remain silent will be disregarded on appeal unless the charge affected substantial rights of defendant and had the clear capacity to bring about an unjust result. State v. Adams, 194 N.J. 186, 206-07 (2008). We therefore evaluate the instruction "in light of the totality of the circumstances - including all the instructions to the jury, and the arguments of counsel." Ibid.
Although the charge given was consistent with the Model Jury Charges, Criminal, "Defendant's Election Not To Testify" (revised June 4, 2009), in effect at the time, it was revised in 2009. The language now states that a defendant is presumed innocent "whether or not" he chooses to testify. Ibid. In State v. Miller, 411 N.J. Super. 521, 553 (App. Div. 2010), certif. granted, 202 N.J. 44 (2010), we rejected a similar challenge to the court's instructions to the jury on a defendant's right to remain silent. Here, when reviewed as a whole, the court not only made clear defendant's right to remain silent but also repeatedly instructed the jury on the burden of proof.
The remaining points raised by defendant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
The court, over defendant's objection, admitted into evidence photographs of the victim's children. The photographs were contained in Jackson's wallet. The wallet also contained $200. An additional $296 was found in Jackson's pants pocket. The State proffered this evidence to dispel any suggestion of robbery as a motive for Jackson's murder. This proffer should have been accomplished without including the photographs of the children. There was, however, no testimony elicited from any witnesses relative to the photographs, nor any reference to the photographs in the State's closing arguments. Hence, the court's error in admitting the photographs over the objection of counsel was not harmful error such that it raises a reasonable doubt that the error contributed to the jury's verdict. R. 2:10-2; Macon, supra, 57 N.J. at 338.
Likewise, testimony from the jail's classification officer explaining how inmates are housed was unnecessary because Lewis' testimony preceded the officer's testimony and essentially explained to the jury the set-up in the facility. Defense counsel objected to the testimony, arguing that the officer "just testified that the individuals are housed together... based on some risk scoring including prior record." He pointed out to the court that since the jury already had the benefit of hearing about Lewis' prior record, which was extensive, he was "concerned that the jury is going to imply from that that Mr. Gamble has a prior record when he doesn't."
First, the officer did not testify specifically how the housing assignment was done. He indicated that he considered a number of factors, including criminal history, and "any problems in the jail when they were... in the facility previously." He then placed the information in a computer which generated a minimum, medium, and maximum status for an individual. He did not testify as to the status of defendant or Lewis. Second, the court gave a thorough cautionary instruction to the jury not to consider defendant's incarceration as evidence of wrongdoing or that he was a "bad person." Therefore, although the testimony was unnecessary, we do not find that the error in admitting this testimony was one that was capable of producing an unjust result. Macon, supra, 57 N.J. at 338.
Finally, defendant contends that at sentencing, the court double counted aggravating factor number one, N.J.S.A. 2C:44-1(a)(1), the nature and circumstances of the offense, and that the sentence imposed was excessive. Specifically, defendant contends Jackson was not "tortured or beaten" or left to die slowly. Rather, he was shot in the head twice, killing him instantly, and therefore the crime was not "cruel" or "heinous." Ibid.
On appeal, our task is to consider whether the trial court followed the sentencing guidelines in the Criminal Code, whether the trial court's discretion was based on findings that are grounded in competent, reasonably credible evidence and whether the court applied correct legal principles. State v. Roth, 95 N.J. 334, 363-64 (1984). The court may only modify a sentence if the record shows "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. When reviewing a sentence imposed, "'[t]he test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather, whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.'" State v. Roach, 146 N.J. 208, 236 (quoting State v. Ghertler, 114 N.J. 383, 388 (1989)), cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).
Here, the evidence presented at trial disclosed that Jackson and defendant had been involved in an argument, the nature of which was unknown. Defendant pursued and shot Jackson twice in the head. At sentencing, the court expressed that defendant showed a lack of remorse, compassion and humanity, and described the killing as a heinous and cruel "execution style murder." The court's findings were grounded in credible evidence presented at trial, based in part on the testimony of credible witnesses. Roth, supra, 95 N.J. at 363. As a result, the court did not err in applying aggravating factor number one, N.J.S.A. 2C:44-1(a)(1). Roach, supra, 146 N.J. at 236. The sentence imposed does not shock the judicial conscience. Roth, supra, 95 N.J. at 364.
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