October 18, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONNELL GIDEON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-10-4097.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Payne and Baxter.
Following a trial by jury, defendant Donnell Gideon appeals from his conviction on charges of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser included offense of murder (count one); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); four counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (counts four, five, six and seven); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 (count eight); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count nine); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count eleven).
After merging count four with count three, count six with count five and count nine with count two, the judge imposed the following sentence: on count one, a twenty-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA); on count two, a concurrent fifteen-year NERA term; on count three, a seven-year NERA term, consecutive to the sentence on counts one and two; on counts five and seven a four-year term of imprisonment on each, subject to a three-year Graves Act parole ineligibility term, concurrent to each other, but consecutive to the sentence imposed on counts one and two; on count eight, a fifteen-year NERA term, concurrent to the sentence imposed on counts one and two; and on count ten, a four-year term of imprisonment consecutive to counts one and two but concurrent to counts three, five, seven and eight. The aggregate sentence was twenty-seven years, subject to the NERA eighty-five percent parole ineligibility term.
On appeal, defendant raises the following claims:
I. [DEFENDANT'S] RIGHT TO CONFRONTATION WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF THE TESTIMONY OF DR. THOMAS REBBECCHI. U.S. Const., Amends VI, XIV; N.J. Const. (1947), Art. 1, Par. 10.
II. [DEFENDANT'S] SENTENCE IS EXCESSIVE.
A. The Sentencing Court Inappropriately Found and Weighed Aggravating Factors
B. The Sentencing Court Failed to Adhere to the Principle of Progressive Discipline in Sentencing [Defendant]
C. The Sentencing Court Failed to Find Mitigating Factors Militating in Favor of a Lesser Sentence
D. The Sentencing Court Considered Improper Information in Meting Out [Defendant's] Sentence.
In a pro se supplemental brief, defendant raises the following additional claims:
I. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE FREE FROM SELF-INCRIMINATION BY BEING FORCED TO GIVE AN INCRIMINATING AND DAMAGING STATEMENT AGAINST HIMSELF, IN VIOLATION [OF THE] CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES WHEREFORE THE CONVICTION MUST BE REVERSED AND THE INDICTMENT DISMISSED.
II. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE WHEREFORE THE CONVICTION SHOULD BE REVERSED. (Partially Raised Below)
III. DEFENDANT WAS DENIED DUE PROCESS BY AN INCONSISTENT VERDICT CAUSED BY FAULTY JURY INSTRUCTIONS AS TO THE ELEMENTS OF MURDER AND ATTEMPTED MURDER, WHEREFORE A NEW TRIAL SHOULD BE GRANTED.
We reject each of these claims and affirm defendant's conviction and sentence.
In July 2004, defendant sold marijuana in the City of Camden. He routinely obtained large quantities from his supplier Eric Jackman, whom he referred to as "E," and then delivered the marijuana to his "workers" to sell in a one-block area near Yorkship Square. Defendant's "workers" complained to him that another drug dealer, Tony Alford, commonly known as "Tone Bone" or "Tone," had robbed them at gunpoint on a number of occasions. As a result, on July 17, 2004, defendant went looking for Alford to tell him to stop robbing his "workers." According to the statement defendant provided to police, as soon as he approached Alford, Alford "started talking slick. . . . Talking trash." Defendant punched Alford in the face and the two began fighting. When Alford's brother "jumped in it" and broke up the fight, defendant began walking home; however, before he arrived home, Alford drove up in a car, exited and said, "yo, don't think this is over. . . . You all niggers, we just . . . gonna peace it up for now but . . . it ain't over." Defendant interpreted Alford's remarks "as a threat."
In his statement to police, defendant explained that immediately after he returned home, he called "E" to tell him of Alford's threats. As defendant explained, "I run a block for him. And I let him know the situation that was going on." "E" advised defendant that he himself would "handle the situation." A little while later, "E" knocked on defendant's front door, telling defendant to "suit up, are you ready to be out, get your black on." Defendant knew this meant he should change into black clothing. He also knew that "E" intended to deal with Alford.
According to the statement defendant provided to police, he and "E" entered a blue Dodge with "E" in the driver's seat and a male whom defendant did not know sitting in the front. The three drove through the Yorkship Square area "looking for [Alford]" and found him standing on the corner of Chesapeake and Collings Avenues. "E" drove around the Square and parked the car approximately one block away from where they had seen Alford standing. When the three emerged from the car, according to defendant, the other two "grabbed the guns," which defendant described as an AK-47 assault rifle and a Mossberg shotgun. The three walked through an alleyway toward Chesapeake Avenue, with "E" and the other male each holding a firearm. When defendant asked "yo, what's up," "E" responded by saying "just look up." At that moment, defendant "heard all the shots firing through the alleyway."
After the gunfire ceased, the three returned to the car and "E" drove to an abandoned house where he and the other male "stashed the firearms" and dropped defendant off at home. According to defendant, not until he read the newspaper the next morning did he learn that "a man was killed, three other people shot." Defendant insisted to police he "never knew what was gonna happen. . . . And I never meant for nobody to get hurt like the way they did. And I just wish I can take it back."
At a Miranda*fn1 hearing held prior to trial, Investigator Ronald Moton of the Camden County Prosecutor's Office testified that: he administered Miranda warnings to defendant both at the beginning of the pre-interview and at the beginning of the formal taped statement; defendant was not in handcuffs during the giving of his statement; defendant was "responsive," "coherent," and did not appear to be under the influence of alcohol or narcotics; defendant appeared to fully understand each question and never expressed a desire to terminate the interview; neither Moton nor the Camden detective who was also present, Orlando Perez, threatened defendant "in any way with what would happen" if he did not give a statement; neither Moton nor Perez made any promises to defendant of favorable treatment in return for providing a statement; and defendant never asked for an attorney.
Defendant testified that: he was under the influence of marijuana and alcohol at the time he provided the statement to Moton and was unable to make a considered judgment about whether to waive his right to remain silent and provide a statement; he was so sick that he had vomited on one of the officers while being fingerprinted; he was handcuffed while giving the statement and the handcuffs were so tight that his hands were bleeding when the handcuffs were finally removed; he repeatedly told the detectives that he did not wish to make a statement but they overcame his refusal by telling him he "wasn't going nowhere" unless he gave a statement.
At the conclusion of the hearing, Judge Natal specifically found the testimony of Investigator Moton to be credible, and the judge accepted as fact Moton's testimony that defendant never asked for an attorney before the taped statement began. By listening to the tape, the judge determined that defendant had not asked for an attorney during the taped portion of the interview either. The judge also accepted Moton's testimony that Miranda warnings had been timely given and defendant understood and waived his rights. The judge found the interview of defendant began at 7:55 p.m. and ended at 11:04 p.m. and that the handcuffs were removed before the questioning began. At the end of the hearing, the judge concluded that defendant's statement had been given "voluntarily and knowingly, not as a result of any undue pressure" and held the statement would be admissible against defendant during the State's case in chief.
Investigator Moton testified at trial, echoing the testimony he had earlier provided at the Miranda hearing. During Moton's testimony, defendant's taped statement was played for the jury. The State also presented the testimony of Officer David Rivera, who was the first officer to arrive at the scene of the shooting on the night of July 17, 2004. Rivera observed a man later identified as Jacques Johnson laying in the grassy median with an apparent gunshot wound to his right thigh. Within a minute, Officer Rivera observed another individual, later identified as Joseph Fields, who was "laying face down, no pulse." A third individual, later identified as John Reynolds, was located at Collings and New Hampshire Avenues with gunshot wounds. Johnson and Reynolds survived. Fields did not.
Candace McKinnon testified that she was working at the Wawa near Yorkship Square on the night of July 17, 2004 when she saw bullets shatter the glass window at the front of the store. To escape the gunfire, she ran into the bathroom. Only later, when she saw blood dripping from her arm, shoulder and thigh, did she realize she had been shot. She was unable to determine where the shots originated and did not see who fired the shots.
Vincent Robinson, who knew defendant from the neighborhood, testified that he had observed the quarrel between defendant and Alford on the afternoon of July 17, 2004. He also saw three individuals wearing all black on the other side of the alleyway that night "loading up a gun or guns." Robinson stated defendant was one of the three. He acknowledged having told police that he "suppose[d]" it was defendant whom he had seen "loading up the gun." Fearing he was about to be robbed, Robinson ran out of the alleyway and as he proceeded to the corner, he "heard some shots." Robinson, who knew Alford, testified that he did not observe Alford in the vicinity of the shooting.
Alford testified, asserting he was not present at the time of the shooting but had been in the area earlier in the day after being involved in an altercation and fist fight with defendant. Alford admitted he had routinely robbed people who were dealing drugs in the Yorkship Square area.
The State also presented the testimony of four expert witnesses. Dr. Thomas Rebbecchi testified as an expert in the field of emergency medicine. In his nine years as an emergency room physician at Cooper Medical Center, he had treated "thousands" of trauma patients, many of them suffering from gunshot wounds. He explained that on July 17, 2004, he was the supervisor of a resident physician, Dr. Sundip Patel, who was Reynolds's treating physician when Reynolds was treated in the emergency room for gunshot wounds to his wrist and leg. Without objection from defendant, the State introduced in evidence Reynolds's medical records from the treatment he received at the hospital on July 17, 2004.
After reviewing the x-rays of Reynolds's wrist, which showed the presence of "foreign bodies there that looked like small BBs, pellets," Dr. Rebbecchi stated that the foreign objects embedded in Reynolds's soft tissue were "consistent with" shotgun pellets. When the prosecutor specifically asked the doctor whether he was "familiar with wounds from a shotgun," he answered "I am." Asked about the follow-up care Reynolds would need in the future, Dr. Rebbecchi commented that Reynolds could develop problems because shotgun pellets remained embedded in his tendons.
The State also presented Dr. John Salvo, who testified in the field of orthopedic medicine and described the injuries sustained by the second gunshot victim, Johnson.
Lieutenant James Storey testified as an expert in ballistics and firearms, opining that: the twelve discharged shells found in the alleyway that night by police were consistent with the type of ammunition that can be fired from an AK-47 and all twelve shells were fired from the same assault weapon; the four discharged shotgun shells collected at the scene were fired from a single shotgun; and a total of two weapons had been fired.
The fourth expert, Dr. Paul Hoyer, described the autopsy he performed on Joseph Fields, opining that Fields died from a rifle wound to the brain.
Defendant testified, asserting that he was not involved in the events at Yorkship Square on July 17, 2004. When asked about the statement he provided to police, defendant insisted that he was "coached" by detectives and "told . . . what to say." Specifically, defendant stated:
They told me that if I can -- if I can tell them that somebody else did the shooting and that I could place myself there just as a witness, that I wouldn't be locked up, that I'd be able to go home that night, and that everything wouldn't fall on me. Don't worry about what's going on. They told me that other people was trying to blame it on me, such as Tone, such as Vinny. They told me that, if you don't want to get locked up for this, tell us what we want you to -- what we want to hear. I said, I told you already.
I don't got nothing to do with it. And that's when they was like, look, well, we got something to tell you and you can't go home, just by -- feeding me what they fed me on the taped statement.
Although defendant admitted in his trial testimony being involved in a fist fight with Alford on the afternoon of the shootings, he characterized it as a "quick fight." He also maintained that after his quarrel with Alford he went home and remained there for the rest of the night, insisting that his statements about accompanying "E" to the alleyway were false and had been the result of the pressure exerted upon him by Moton and the Camden detective.
Defendant also repudiated the portion of his taped statement in which he told police that "E" said he would take care of the problem of Alford robbing defendant's "workers." He testified that "E" had told him not to worry about it "because it ain't about nothing. It was just a little, couple of dollars, so. That's it." He also denied seeing "E" with an AK-47 in his hands that night. At the conclusion of defendant's testimony, he rested without calling any other witnesses.
In Point I, defendant argues that "[t]he admission into evidence of Dr. Thomas Rebbecchi's testimony, whose job is to supervise residents, including Dr. Sundip Patel, violated [defendant's] right to confront witnesses." He asserts that Dr. Rebbecchi's testimony, Dr. Patel's charting notes, and the repetition of what Reynolds may have said to a nurse or to Dr. Patel denied him his constitutional right of confrontation. At trial, defendant did not object to Dr. Rebbecchi's testimony and, as we have already noted, the State was able to admit Reynolds's entire medical record into evidence without objection from defendant. Thus, defendant's argument is essentially this: the judge committed reversible error when he failed to sua sponte order the exclusion of Dr. Rebbecchi's testimony and Reynolds's medical records.
Statements made by a patient in good faith describing the patient's medical history, symptoms and condition for purposes of medical diagnosis or treatment are admissible as an exception to the hearsay rule. N.J.R.E. 803(c)(4). This exception is based on the recognition that the declarant is more interested in obtaining the correct diagnosis and appropriate medical treatment than in obtaining a favorable result at an eventual trial. Matter of C.A., 146 N.J. 71, 99 (1996). While the declarant's statements about the identity of his assailant are not protected by the medical records exception to the hearsay rule, see State v. Gardner, 51 N.J. 444, 461-62 (1968), defendant points to nothing in Reynolds's medical records admitted in evidence that would constitute a Gardner violation. Nor has defendant cited any authority to support the specific proposition that the Confrontation Clause is violated by admitting in evidence medical records describing a patient's injuries and medical treatment. We thus reject defendant's contention that the judge erred by failing to sua sponte bar the State from introducing Reynolds's medical records in evidence.
Defendant further argues that by permitting Dr. Rebbecchi to testify based upon the medical records and opinions compiled by Dr. Patel the judge impermissibly violated defendant's right to cross-examine Dr. Patel, who did not testify at trial. We disagree. As is evident from the record, the opinions of Dr. Rebbecchi were ultimately his own. His conclusion that the injuries Reynolds sustained were the result of gunshot wounds was based upon his own review of the x-rays, and upon his own knowledge, gained from nine years of experience as an emergency room physician familiar with the appearance and effect of gunshot wounds. As we have noted, Dr. Rebbecci specifically testified that he is skilled in recognizing the effects of a gunshot wound. Therefore, he did not parrot Dr. Patel's conclusions. Instead, he reached his own opinion and defendant had a full opportunity to cross-examine Dr. Rebbecchi about the opinion he expressed.
Moreover, as is evident from N.J.R.E. 703, when forming an opinion, an expert witness may rely upon facts or data prepared by another expert, so long as it is customary for experts in that field to do so. State v. Torres, 183 N.J. 554, 576 (2005). We therefore reject as meritless the claim defendant advances in Point I.
In Point II, defendant maintains that the sentence imposed was excessive because: 1) the judge "inappropriately found and weighed aggravating factors"; 2) the judge "failed to adhere to the principle of progressive discipline"; 3) the judge failed to find mitigating factors that were present in the record; and 4) the judge considered "improper information in meting out [defendant's] sentence." We address those claims in the same sequence that defendant has presented them.
In support of his claim that Judge Natal inappropriately found and weighed the aggravating factors, defendant maintains that the finding of aggravating factor one, that the crime "was committed in an especially heinous, cruel or depraved manner," see N.J.S.A. 2C:44-1(a)(1), constituted an impermissible double-counting of the elements of the offense of aggravated manslaughter, because aggravated manslaughter already requires a reckless state of mind. In finding aggravating factor one, the judge observed that firing an AK-47 into a crowd, knowing that its rapid fire hail of bullets would have the capacity to maim or kill numerous people, "was especially cruel and heinous and depraved." We view the judge's reliance on the use of an AK-47 as separate and distinct from the reckless state of mind that is an element of the offense. We therefore reject defendant's claim that the judge impermissibly double-counted an element of the offense. Even if there were such a violation, it would be of little consequence because the judge noted that he was not weighing aggravating factor one heavily on a qualitative basis.
Defendant also maintains that the judge's finding of aggravating factor three, the risk defendant would commit another offense; six, the extent of defendant's prior record; and nine, the need for deterrence, see N.J.S.A. 2C:44-1(a)(3), (6) and (9), were accomplished without any explanation by the judge of the factual basis supporting those aggravating factors. Defendant's argument is belied by the record, which demonstrates that in support of aggravating factor three, the judge pointed to defendant's "continual juvenile contacts with the court system" as a basis for the finding of the risk defendant would commit another offense. As to aggravating factor six, the judge noted he was not weighing it heavily. Finally, as to aggravating factor nine, the need for deterrence, the judge pointedly observed that the evidence produced at trial showed that defendant and his associates hid in an alley and opened fire "indiscriminately." We discern from the judge's remarks a strong need to deter defendant and others from engaging in such behavior. We therefore reject defendant's claims that the judge failed to adequately explain the reasons for finding the aggravating factors.
Defendant also points out that the judge referred to his "numerous" indictable convictions, when the record establishes that defendant has no adult indictable convictions. We do not view this stray remark as anything other than an inadvertent slip because it is obvious from the judge's remarks throughout the sentencing proceeding that he clearly understood defendant's only involvement with the adult criminal justice system was a lone municipal court conviction. What is far more likely is that the judge's reference to numerous "indictable" convictions was a reference to defendant's numerous juvenile adjudications of delinquency for what would have been indictable offenses if committed by an adult. We thus reject defendant's claim that the judge misstated his criminal record.
Next, defendant presents the argument that: in evaluating [defendant's] prior criminal history to determine an appropriate sentence, the trial court drifted away from the underlying current of New Jersey's sentencing framework, which is essentially molded after the concept of progressive discipline. . . . Put simply, "progressive discipline" equates to an increasing degree of punishment for subsequent offenses, starting with the least punitive for the first offense and greater punishments for successive offenses.
In support of his "progressive discipline" argument, defendant relies on a series of cases involving discipline imposed on public employees for job-related infractions, such as In re Carter, 191 N.J. 474 (2007), and West New York v. Bock, 38 N.J. 500 (1962). His argument that the concepts of "progressive discipline" affecting public employees should somehow be imported into the imposition of sentence on a criminal defendant lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). Suffice it to say, defendant's convictions stem from criminal offenses, not a labor dispute, and the principles articulated in Carter and Bock are therefore completely irrelevant to our review. Equally meritless is defendant's claim that he "falls into that category" the Legislature intended to treat "with grace and lenience."
Third, defendant maintains that the judge failed to find mitigating factors one and two, see N.J.S.A. 2C:44-1(b)(1) and (2), namely that defendant was merely present during the event and did not contemplate that his conduct would cause or threaten serious harm. We reject defendant's argument that he was "merely present" and did not understand that shots would be fired. The record demonstrates that defendant knew full well that "E" and the other man intended to fire shots and that defendant knowingly served as a "lookout" to ensure that the other two were successful. Because there was no factual support in the record for a finding of mitigating factors one and two, Judge Natal did not err by not finding their existence. State v. Dalziel, 182 N.J. 494, 504-05 (2005).
Defendant's final contention regarding his sentence is that the court should not have imposed any sentence at all for the aggravated assault on Reynolds because of the hearsay violation raised in Point I. We have already concluded defendant's hearsay claim concerning Dr. Rebbecchi's testimony was meritless. We therefore reject the corollary claim that the sentence imposed for the aggravated assault on Reynolds is void and must be vacated.
Finally, we note that our role in reviewing claims of an excessive sentence is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). So long as the judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we will not substitute our view of a proper sentence for the sentence imposed by a trial judge, who is afforded considerable discretion in the imposition of sentence. Ibid. (quoting State v. Roth, 95 N.J. 334, 364 (1984)). When trial judges exercise their discretion in accordance with the principles set forth in Roth and in the Code, "they need fear no second-guessing." Id. at 608 (quoting Roth, supra, 95 N.J. at 365)). Having been presented with no meritorious basis for disturbing the well-considered sentence imposed by Judge Natal, we reject the sentencing arguments defendant advances in Point II.
We turn next to the claims defendant presents in his supplemental pro se brief. In Point I of that brief, he maintains the judge erred when he permitted the State to introduce defendant's taped statement to police as part of its case in chief, claiming it should have been suppressed. Following the Miranda hearing, the judge reached a contrary conclusion. Our role in reviewing a judge's factual findings is circumscribed. So long as the judge's findings of fact are supported by credible evidence in the record, we are obliged to accept them. State v. Locurto, 157 N.J. 463, 472 (1999). Moreover, we defer to the credibility findings made by a trial judge who, unlike an appellate tribunal, had the opportunity to see and hear the witnesses and make a firsthand evaluation of their credibility. Id. at 474. The arguments defendant presents on appeal concerning the testimony presented at the Miranda hearing are the same arguments that were considered and rejected by Judge Natal at the conclusion of the Miranda hearing. We have been presented with no meritorious basis to disturb Judge Natal's comprehensive and well-supported findings of fact. We thus reject the claims defendant advances in Point I of his pro se supplemental brief.
In Point II of his supplemental brief, defendant maintains that the verdict was against the weight of the evidence and should therefore be reversed. Because defendant did not move for a new trial on the ground of insufficient evidence, he is procedurally barred from raising this claim on appeal. R. 2:10-1. We therefore will not discuss this issue further.
In Point III of his supplemental brief, defendant maintains he was denied due process by an inconsistent verdict, which he attributes to faulty jury instructions, and asserts that these errors entitle him to a new trial. In particular, he argues that his aggravated manslaughter conviction on count one, which involved the death of Joseph Fields, is inconsistent with his conviction for the attempted murder of Alford in count two. Other than reciting general propositions of law concerning a judge's responsibility to accurately instruct the jury on the elements of an offense, defendant makes no specific claims about how Judge Natal's instructions to the jury pertaining to counts one and two deviated from the requirements imposed in the controlling case law. Therefore, because defendant has failed to present any specific legal argument supporting his contention that the judge's instruction to the jury on counts one and two was faulty, we reject this aspect of defendant's claim.
Equally meritless is defendant's contention that the verdicts on count one and count two were inconsistent. So long as each verdict is supported by evidence in the record, verdicts will not be set aside even if they appear to be facially inconsistent. State v. Grey, 147 N.J. 4, 11 (1996). Moreover, we disagree with defendant's underlying claim that because Alford was not present at the scene at the time of the shootings the conviction in count two for the attempted murder of Alford must be vacated. This claim is meritless. When an actor intends to murder one person but an unintended victim dies as a result, the intent to murder the intended victim is deemed transferred to the unintended victim, here, Joseph Fields. State v. Viera, 346 N.J. Super. 198, 211 (App. Div. 2001) (describing the doctrine of "transferred intent"), certif. denied, 174 N.J. 38 (2002). Consequently, the principle of "transferred intent" compels the conclusion that defendant is criminally responsible for the consequences of his conduct, even if the person who incurred the injury was not the intended victim. Ibid. We thus reject in its entirety the claim defendant advances in Point III of his supplemental brief.