November 10, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KYRENE M. ROBINSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-04-0455.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Fuentes and Gilroy.
On April 14, 2004, a Cumberland County Grand Jury charged defendant with felony murder, N.J.S.A. 2C:11-3a(3) (count one); murder, N.J.S.A. 2C:11-3a(1) or (2) (count two); first-degree robbery, N.J.S.A. 2C:15-1a (count three); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); third-degree distribution of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (count six); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count seven). A jury found defendant guilty of counts two, four, five, and seven. The court dismissed the remaining counts during trial.
On October 16, 2006, the court sentenced defendant on count two to a sixty-year extended term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a five-year period of parole supervision upon release. After merging the conviction on count four with the conviction on count two, the court sentenced defendant on counts five and seven to five years and ten years of imprisonment, respectively, the sentences to run concurrent with each other and with the sentence imposed on count two. The court also imposed all appropriate fines and penalties.
Because defendant does not contend that the verdicts were against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other relevant facts as necessary during our disposition of the issues raised on appeal.
Defendant is a drug dealer. Prior to Richard Gray's death, defendant gave Gray ten pounds of marijuana to sell to third parties on a promise that Gray would, in turn, pay defendant $8,500 for the marijuana after Gray sold it. On May 26, 2003, because Gray had not paid defendant for the marijuana, defendant shot and killed him from a distance of approximately two to four feet with a semi-automatic handgun. After shooting Gray, defendant retrieved a brown bag containing marijuana off the ground, fled the scene through the woods behind the property where the murder occurred, went to a party, and got drunk.
Early in the morning of May 29, 2003, defendant traveled via bus to New York City and discarded his semi-automatic handgun in a parking garage near the Port Authority Building. Upon returning to New Jersey and learning that the police were looking for him, defendant turned himself into the Bridgeton Police Department. The New Jersey State Police transported defendant to a nearby State Police barracks where defendant confessed to two State Police detectives to having committed the murder. Defendant drew a map of the location where he had disposed of the handgun in New York City, and the State Police recovered the gun that day. A ballistics test determined that the bullet recovered from Gray's body came from defendant's handgun.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO CHARGE PASSION/PROVOCATION MANSLAUGH[T]ER AS A LESSER-INCLUDED OFFENSE OF MURDER, BECAUSE THE EVIDENCE REVEALED THAT DURING AN ARGUMENT THE DECEDENT REACHED FOR A BAG THAT DEFENDANT BELIEVED TO CONTAIN A WEAPON.
DEFENDANT WAS DENIED A FAIR TRIAL WHEN HIS TAPE-RECORDED STATEMENT WAS NOT REDACTED TO OMIT A REFERENCE TO THE FACT THAT HE HAD PREVIOUSLY BEEN INCARCERATED (PARTIALLY RAISED BELOW).
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW).
THE 60 YEAR EXTENDED-TERM SENTENCE IS EXCESSIVE.
We affirm the convictions and sentences; however, for reasons discussed infra, we remand to correct the judgment of conviction.
In Point II of his brief, defendant argues that he was denied a fair trial because the trial court failed to redact a certain portion of his tape-recorded confession indicating that he had been incarcerated prior to the murder before the tape was played for the jury in violation of N.J.R.E. 404(b). Defendant contends that the court's curative instruction was insufficient to ameliorate any prejudice caused by the jury hearing the unredacted statement. Defendant asserts that the error was compounded by the jury having access to the audiotape during its deliberations. Lastly, defendant argues that he was denied effective assistance of counsel by his attorney failing to request that the recorded statement be redacted pretrial. Although we agree it was improper for the jury to have heard evidence that defendant was previously incarcerated, we conclude that the error does not warrant reversal.
At trial, the State played defendant's entire tape-recorded confession to the jury.*fn1 During the interrogation, the following colloquy occurred between New Jersey State Police Detective William Henry and defendant when the detective questioned defendant concerning the handgun defendant used in committing the murder:
[Detective:] How long have you had that gun?
[Defendant:] Since I been home. Three months.
[Detective:] Since February?
[Defendant:] Yeah. February 24th.
[Detective:] How about, how about the gun? [Defendant:] I been have that since way back in the day. It was laying in the woods.
[Detective:] Before you went to jail?
[Defendant:] Yeah. (indisc).
[Detective:] So you had that for at least eight years?
[Defendant:] A long time.
Although defense counsel had been provided with a transcribed copy of defendant's oral confession to review before the audiotape was played to the jury, counsel never objected to its content. Indeed, even after the audiotape was played to the jury and the court inquired of defense counsel whether there was anything he wanted to bring to the court's attention concerning the contents of the tape, counsel replied in the negative.
However, during the charge conference, defense counsel raised an issue concerning the reference to defendant's prior incarceration contained on the tape. Counsel stated that "there's a very brief reference to the fact that Mr. Robinson may have been in jail." As a result, the trial court provided the following curative instruction to the jury during its final charge:
During the course of the Defendant's statement that you heard played for you in court, there was reference to the time during which he had the gun and there was some reference to the Defendant having been in jail.
Ladies and gentlemen, people go to jail for a lot of reasons. Maybe not paying a traffic ticket. It could be a mistake, very frankly. So we don't know the reason why the Defendant may or may not have been in jail or whether he actually was in jail.
There's no [real] direct proof of that before the [c]court. And I'm going to instruct you to not reflect upon that, discuss it or use it in any way in your deliberations. I often tell people, really good people could be in jail sometimes and that's true.
There may be somebody in this room that's been in jail that you would hardly suspect to be the case. People go to jail because of disorderly persons offenses. Sometimes because of misidentification; any number of reasons.
So I'm telling you to totally disregard any reference to that effect. It should play no part at all in your decision as to whether or not the State has met its burden of proof.
Following the court's final instructions, without objection, a copy of the audiotape, without redaction, was provided to the jury.
"Not every trial error in a criminal case requires a reversal of the conviction. If it is not of constitutional dimensions, it shall be disregarded by the appellate court 'unless it is of such a nature as to have been clearly capable of producing an unjust result . . . .'" State v. LaPorte, 62 N.J. 312, 318-19 (1973) (quoting R. 2:10-2). "The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973). When the evidence of guilt is overwhelming, that evidential error may be found harmless beyond a reasonable doubt. State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998).
We recognize the potential undue prejudice that can result to a defendant from admission of "other crimes" evidence in violation of N.J.R.E. 404(b). State v. Stevens, 115 N.J. 289, 302-03 (1989). Accordingly, "other crimes" evidence is ordinarily not admissible and can only be admitted for certain limited purposes where the probative value is not substantially outweighed by the risk of undue prejudice. N.J.R.E. 403; N.J.R.E. 404(b).
Here, the State did not seek to introduce evidence relating to defendant's prior incarceration for the purpose of the jury drawing on an adverse inference against defendant. Rather, the jury learned of defendant's prior incarceration through a fleeting reference contained in defendant's twenty-nine minute tape-recorded confession that was played to the jury without objection. Thus, the other crimes framework is inapplicable; instead, we conclude that this issue is controlled by State v. Mays, 321 N.J. Super. 619 (App. Div.), certif. denied, 162 N.J. 132 (1999) and Burton, supra.
In Mays, a police officer, when asked to identify a photograph of the defendant, stated that "Rahway State Prison was on the back of [the photograph]." 321 N.J. Super. at 631. Defense counsel objected to the statement and the prosecutor withdrew it; however, defendant did not request a curative instruction. Ibid. Defense counsel requested that the words "Rahway State Prison" be redacted from the photograph before it was entered into evidence and viewed by the jury during deliberations. Ibid. In its final charge, the trial court instructed the jury that the photograph could have been obtained by the police in a variety of ways and was not to be considered as evidence of the defendant's guilt. Id. at 631-32.
On appeal, the defendant contended that the trial court should have sua sponte given a limiting instruction regarding the police officer's reference to the words Rahway State Prison. Id. at 632. We rejected the defendant's argument. Ibid. While recognizing the potential danger that the reference may have created, we noted that no request for a curative instruction had been made at the time the officer testified, and that the reference was "fleeting", taking up one-half of a page of the trial transcript of a five-day trial. Id. at 633. Accordingly, we found no plain error. Ibid.
Similarly, in Burton, supra, 309 N.J. Super. at 289, we found that any error in admitting a defendant's "mug shot" or a photograph depicting defendant in orange prison garb was harmless because of the overwhelming evidence of the defendant's guilt. See also State v. Porambo, 226 N.J. Super. 416, 425-26 (App. Div. 1988) (finding no plain error where a witness testified that she identified the defendant from his "mug shot," where the reference was fleeting and a curative instruction was given).
We conclude that in light of the record and applicable law the impropriety of permitting the jury to hear that defendant was previously incarcerated was harmless and does not warrant reversal. Defendant's statements were fleeting, and the trial court provided a curative instruction to the jury regarding the reference.
Moreover, the initial comment did not contain any reference to defendant's prior incarceration. He simply stated that he possessed the gun since he had "been home." This statement is ambiguous and could have meant any number of things; it alone could not have unduly prejudiced the jury.
The second reference, which contained the word "jail" occurred later and was fleeting. Defendant mischaracterizes the second statement, claiming that it showed that he had been in jail for the past eight years. However, the exchange only established that defendant obtained the gun before he had gone to jail eight years prior.
While defense counsel would have been prudent to have had that statement redacted from the audiotape, that single reference did not cause undue prejudice to defendant, which was "clearly capable of producing an unjust result." R. 2:10-2. Additionally, the trial court provided a curative instruction --approved by defense counsel -- regarding defendant's brief statement. We assume the jury followed that instruction. State v. Compton, 304 N.J. Super. 477, 483 (App. Div. 1997), certif. denied, 53 N.J. 51 (1998). Lastly, we note the State did not make any further references during the trial concerning defendant's prior incarceration.
What is more, evidence of defendant's guilt was overwhelming. Defendant gave a detailed confession of having committed the murder to the State Police detectives. He informed the detectives where he had discarded the handgun in a parking garage in New York City and drew a map showing the exact location where the handgun could be found. A ballistics test matched the bullet recovered from Gray's body to that handgun.
Because we find the error harmless, we also reject defendant's argument that he was denied effective assistance of counsel by his attorney failing to take the necessary steps to have his tape-recorded confession redacted prior to trial. Defendant has failed to meet the second prong of the Strickland v. Washington test, that is, that there was "a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984).
Defendant argues next that the trial court erred in denying his request for a passion/provocation manslaughter charge, contending that the record contained sufficient evidence demonstrating defendant shot Gray because defendant believed Gray was reaching for a handgun. Defendant asserts that Gray's actions placed him in fear for his life, and that he "need[ed] to fire first." We disagree.
Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instructions on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. Because a defendant should be tried with correct jury instructions, "an erroneous charge will rarely stand on the ground that the error was harmless." State v. Barden, 195 N.J. 375, 394 (2008).
Lesser-included offenses should only be charged to the jury if there is a rational basis in the evidence for the jury to convict the defendant of the included offense. N.J.S.A. 2C:1-8e; State v. Thomas, 187 N.J. 119, 131 (2006); State v. Brent, 137 N.J. 107, 117 (1994). Simply stated, there must be a rational basis to "find the defendant not guilty of the greater offense, as well as guilty of the lesser offense." State v. Pantusco, 330 N.J. Super. 424, 445 (App. Div.), certif. denied, 165 N.J. 527 (2000). While "the 'rational basis' test . . . 'imposes a low threshold,'" State v. Scherzer, 301 N.J. Super. 363, 480 (App. Div. 1997) (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)), the requirement must be more than an abstract reason for believing that the jury may acquit the defendant on the greater charge and return a guilty verdict on the lesser charge. "'[S]heer speculation does not constitute a rational basis.'" Thomas, supra, 187 N.J. at 132 (quoting Brent, supra, 137 N.J. at 118).
Passion/provocation manslaughter occurs where there is "a slaying committed in a transport of passion or heat of blood induced by an adequate provocation, provided the killing occurs before the passage of time sufficient for an ordinary person in like circumstances to cool off." State v. Mauricio, 117 N.J. 402, 411 (1990) (quoting Crisantos, supra, 102 N.J. at 274); see also N.J.S.A. 2C:11-4b(2) (defining manslaughter as a "homicide which would otherwise be murder . . . committed in the heat of passion resulting from a reasonable provocation"). The offense has four elements: "the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." Mauricio, supra, 117 N.J. at 411. The first two elements are objective while the second two are subjective. Ibid.
Under the first prong, "the provocation must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control." Id. at 412 (internal quotation and citation omitted). When evaluating this prong, a trial court must consider the evidence in the light most favorable to the defendant and determine whether a rational jury could conclude that the defendant's assertion of provocation was not disproved by the State beyond a reasonable doubt. Id. at 412.
An exchange of words alone does not provide adequate provocation. State v. Ruscingno, 217 N.J. Super. 467, 472 (App. Div.) (finding that "words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter"), certif. denied, 108 N.J. 210 (1987). However, a passion/provocation manslaughter charge may be appropriate where the defendant believes the victim is going to harm him or her based upon the victim's threatening gestures or actions. See, e.g., State v. Powell, 84 N.J. 305, 321 (1980) (approving of a passion/provocation manslaughter charge where the defendant and victim "argued and [the victim] lunged for [defendant's] gun," which made defendant believe she was trying to kill him); State v. Bonano, 59 N.J. 515, 523-524 (1971) (finding that a passion/provocation charge was warranted where the defendant testified that he feared for his life because the victim brandished a knife and threatened to kill him).
Finally, mutual combat may provide a basis for a passion/provocation manslaughter charge. Crisantos, supra, 102 N.J. at 274. However, the "contest must have been waged on equal terms and no unfair advantage taken of the deceased . . . [t]he offense is not manslaughter but murder where the defendant alone was armed; and took an unfair advantage of the deceased." Id. at 274-275 (internal quotation omitted).
Here, defendant contends that his statement to police provided a foundation for a passion/provocation manslaughter charge. That statement contained the following exchanges:
[Detective:] Just tell me what you had to do with this investigation? Tell me why you are here today[;] what did you do?
[Defendant:] Yeah, I shot the boy. He owed me some money[,] they owe me $8,500.00. I shot him.
[Detective:] Can you describe to me how the shooting took place?
[Defendant:] We was arguing. He say he wasn't going to pay me my money so I shot him and that was it.
[Detective:] Did you go to 35 King
Drive planning to shoot [Gray]?
[Defendant:] No, I wasn't planning if he gave me my money I would have just left. But he said I was beat for my money so I shot him and that was it.
[Detective:] Did you guys engage in a fight or a struggle at all hand and hand?
[Defendant:] Not hardly.
[Detective:] Were you standing face to face with him when you fired the shot? And then he moved or were you standing were you putting. . .
[Defendant:] He was, um, leaning down.
[Detective:] Doing what?
[Defendant:] Squatting down. He had some weed [marijuana] right there you know[;] he was squatting down. He was going to pay me but . . . a little bit (indisc). Like this I don't know.
[Detective:] Did he say he was going to pay you something?
[Defendant:] No. He just said I was beat.
[Detective:] And the[n] he leaned down to pick up some weed?
[Defendant:] I think. I think, yeah, yeah. He was leaning like this bending down. I didn't know he had it though. I didn't find out until after this happened. I didn't know. He was bending down I didn't know if he was going to get a gun or what.
[Detective:] You said there was a brown paper bag?
[Defendant:] Yeah, I thought there was a gun in there but it wasn't[,] it happened to be weed.
[Detective:] And just to clarify it, did he say that he was going to try to get you some money like do you think . . . ?
[Defendant:] Nah, he said I am beat and then he went down to grab that bag[, I] thought he had a gun in there and that is when I shot. I thought there was a gun in there but it happened to be some weed in there.
[Detective:] Was there a gun in the bag?
[Defendant:] No, just weed in there[.] I didn't know that a brown bag rolled up. I thought he was going to shoot me or something and that is when I just shot and looking, grab[bed] that bag and I was like oh, there is some weed in there. I grabbed the bag and I just ran back to the woods.
We conclude that under the circumstances, there was no showing of an adequate provocation to justify a passion/provocation manslaughter charge. Even granting defendant the benefit of the doubt that he thought the victim may have had a gun in the brown paper bag, the victim's actions did not provide adequate and objective provocation.
The verbal argument between the men did not amount to adequate provocation. Ruscingno, supra, 217 N.J. Super. at 472. Furthermore, the victim's actions and gestures were not threatening. Unlike the circumstances in Powell and Bonano, Gray did not lunge at defendant, brandish a weapon, threaten to kill defendant, or attempt to grab defendant's weapon from him. Gray simply did not engage in any activity or behavior which could be objectively viewed as adequate provocation under the law; Gray merely quarreled with defendant over the money he owed defendant, then reached for a bag on the ground and was shot. Despite defendant's statement that he "didn't know if [Gray] was going to get a gun or what," no evidence exists in the record demonstrating that the victim made any threatening gesture or movement toward defendant which would constitute adequate provocation.
Indeed, defendant's own statement substantiates that he planned to shoot Gray if Gray did not provide him with the money defendant claimed he was owed. During his statement to police, defendant repeatedly stated that he shot Gray because Gray "beat" him for the money from the marijuana defendant fronted to Gray, not because defendant thought Gray was armed and would kill him. Additionally, defendant confronted Gray, had a loaded weapon in his possession, and admitted that he brought a tube sock with him to catch the spent bullet casings. Defendant also admitted that there was "hardly" a fight between them. Further, the record confirms that Gray was unarmed during the encounter; the brown bag Gray reached into before being shot contained marijuana, which defendant took with him after the shooting. Under these circumstances, there was no rational basis upon which to support a passion/provocation manslaughter charge. See Thomas, supra, 187 N.J. at 131-32.
We have considered the defendant's remaining arguments and are satisfied in light of the record and applicable law that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
Defendant argues that his sixty-year extended-term sentence is excessive. Defendant contends that the court failed to consider mitigating sentencing factor N.J.S.A. 2C:44-1(b)(5), that is, that Gray induced the offense by telling defendant "that he would not pay him the thousands of dollars he owed him, and then he reached toward a paper bag." The argument is meritless.
When reviewing a sentence, we determine whether the trial court exercised its discretion "based upon findings of fact that are grounded in competent, reasonably credible evidence," and whether the court applied the correct legal principles to those findings. State v. Roth, 95 N.J. 334, 363 (1984). We will only reverse a sentence where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of key evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994); accord State v. Cassady, 198 N.J. 165, 180 (2009).
We conclude that the trial court did not abuse its discretion in sentencing defendant to an extended term of sixty years. In reviewing the transcript of the sentencing proceeding, we note that the trial court found mitigating sentencing factor N.J.S.A. 2C:44-1(b)(12) (cooperation with law enforcement by defendant turning himself into the police, confessing to the crime, and advising where they could locate the murder weapon). Although the court found mitigating sentencing factor (12), it did not consider it nearly as significant as aggravating sentencing factors N.J.S.A. 2C:44- 1a(3), (6), and (9). However, the judgment of conviction does not reflect the trial court's finding of mitigating sentencing factor (12). Accordingly, we remand to enter an amended judgment of conviction indicating the court's finding mitigating factor (12) as announced by the court in sentencing defendant.
Affirmed; and remanded to enter an amended judgment of conviction.