February 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CORNELL DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-12-2711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges Fisher, Sapp-Peterson and Simonelli.
Defendant appeals his conviction, following a jury trial, of one count of second-degree bribery, N.J.S.A. 2C:27-2, and the five-year custodial sentence imposed. We affirm.
A grand jury indicted defendant on two counts of second-degree bribery, N.J.S.A. 2C:27-2. Count One arose of a series of events that allegedly occurred between January 1 and May 31, 2004. Count Two, for which defendant was convicted, related to events that occurred between April 13 and May 5, 2005, while defendant was a member of the Atlantic City Board of Education and its president.
At trial, the State's chief witness in connection with Count Two was Stephanie Davies-Khan (Davies-Khan). Defendant's key witnesses in connection with that count were Tracey Neville (Neville) and Catherine Hunton-Clarke (Hunton-Clarke). The bribery charge in Count Two turned on whether defendant accepted a $2200 check as payment for legitimate business services he provided or whether the check represented a kickback.
The evidence presented at trial disclosed that defendant became a member of the Board in 2003 and remained on the Board until 2005. He initially served as vice president and later as the Board's president. During this time period, defendant also operated a consulting business called Methodical Endeavors, which formulated business plans and aided entrepreneurship.
Davies-Khan testified that in 2004, at the suggestion of defendant's
nephew, she reached out to defendant for assistance
in creating a business plan for her business, PECC,*fn1
which she had established with Hunton-Clarke and Neville.
PECC provided plumbing, HVAC, and electrical services to property
owners. Defendant met with the three women and advised that he would
charge $500 for his consulting services, but PECC decided not to have
defendant prepare the business plan at that point. Thereafter, while
attending a meeting for parents at a local school, Davies-Khan learned
about an upcoming program the Board was considering for adult
vocational training that sounded similar to the program that she and
her associates had discussed with defendant. She suspected that
defendant had stolen PECC's program.
Defendant met with her, Hunton-Clarke and Neville a second time and offered to put PECC's paperwork in order in exchange for a one percent interest in the company. They rejected this proposal. Defendant then told them that they would have to pay him $1000 for facilitating their acquisition of a contract with the Board, to which Davies-Khan indicated she told defendant "that's extortion[.]" However, Davies-Khan testified that "[e]verything that got [to the Board] got there through Cornell."
Defendant submitted PECC's proposal to the Board after PECC, at defendant's repeated requests, lowered its bid proposal. The Board awarded a contract to PECC. Subsequently, Davies-Khan was elected to the Board in April 2005 and, as a result of an ethics opinion she received, she severed her ties to PECC. Her relationship with defendant was fairly friendly at that time.
According to Davies-Khan, sometime thereafter, Neville contacted her and told her that she, meaning Neville, was supposed to meet with defendant but defendant had not arrived at the school where the meeting was to take place. It was at that point that Davies-Khan first learned defendant had been teaching for PECC, despite being on the Board. Davies-Khan lived across the street from the school where Neville was scheduled to meet defendant. Neville explained to Davies-Khan that she was leaving for the Bahamas and asked Davies-Khan to give defendant a check she had for him because she could no longer wait for him. The check was for $2200. When Davies-Khan asked Neville why defendant was getting a $2200 check, Neville told her that she and Hunton-Clarke just wanted defendant to "leave us alone."
Davies-Khan went across the street to the school and met Neville, who gave her the check. Davies-Khan waited for defendant, and when he arrived, he asked her to copy some papers for him. While copying those papers, she made a copy of the $2200 check and then left the check for defendant on a desk with the papers she had copied. Davies-Khan testified that she copied the check because she was unhappy that defendant was being paid by PECC despite his position on the Board.
Davies-Khan testified that she was "waiting for the decision on whether or not [she could] take money, if [she could] teach in the class, if [she could] volunteer in the class[,]" and she felt that defendant's situation was different than hers "because he was already the Board President" and she knew "he wasn't entitled to" $2200. The following day during a telephone conversation with defendant, Davies-Khan asked what he had done for PECC that justified his receiving $2200. Defendant responded: "That's how it['s] done."
Under cross-examination, Davies-Khan admitted that she lied in the first statement she provided to investigators. She explained that she was "scared" because although she believed the contract awarded to PECC was legal, she also believed that the $2200 check given to defendant was illegal. Before she gave her second statement, she was granted immunity.
Neville and Hunton-Clarke testified otherwise. According to Neville, it was Davies-Khan who approached her and Hunton-Clarke, telling them that defendant wanted $3000 to continue to assist them with their business ventures other than with the Board. Neville explained that she and Hunton-Clarke were skeptical, thinking this payment may be a kickback, so they decided to meet with defendant. The two met with him, and after discussing the matter, realized that the payment defendant sought was "[f]or the business plan, for him helping to assist us with finding other jobs, and basically helping us to learn how to put proposals together and bid on jobs ourselves." She and Hunton-Clark negotiated the fee down to $2200.
The next day during a PECC business meeting attended by all three women, Neville and Hunton-Clarke told Davies-Khan that they had negotiated a $2200 payment with defendant for his services. Thereafter, when all three women were attending a class defendant was teaching in May 2005, Neville handed a $2200 check made payable to defendant to Davies-Khan. Neville explained that she gave the check to Davies-Khan to give to defendant because she was going on vacation. Hunton-Clarke's testimony essentially echoed Neville's testimony.
The jury convicted defendant of bribery and the court sentenced defendant to a five-year custodial term, along with fines and penalties. The present appeal followed.
Defendant raises the following points on appeal:
THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW THE DEFENSE TO ELICIT MS. DAVIES-KAHN'S BIAS AGAINST MR. DAVIS ON CROSS-EXAMINATION.
THE TRIAL COURT ERRED BY ALLOWING MR. DAVIS'S CONVICTION BASED ON ACTS WHICH OCCURRED BEYOND THE SCOPE OF THE INDICTMENT. POINT THREE
THE ADMISSION OF EVIDENCE OF BAD ACTS WHICH OCCURRED PRIOR TO APRIL 13, 2005, VIOLATED N.J.R.E. 404(b) AND DEPRIVED MR. DAVIS OF HIS RIGHT TO A FAIR TRIAL; THE COURT'S FAILURE TO GIVE A LIMITING INSTRUCTION WAS ERROR. (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING MR. DAVIS TO A DOWNGRADED SENTENCE.
During cross-examination of Davies-Khan, defense counsel sought to elicit testimony demonstrating her bias against defendant, which the defense claimed was based upon her political affiliation with an organization opposed to defendant. Defense counsel also sought to introduce a video recording of a Board meeting where a female voice is heard saying that defendant "is going to get it." The defense claimed that the voice heard on the video was that of Davies-Khan. The court conducted a hearing outside of the presence of the jury, N.J.R.E. 104, during which defense counsel was permitted to question Davies-Khan on the issue. At its conclusion, the court ruled it would not permit cross-examination in this area, reasoning that the evidence had little probative value, was collateral, and had the potential to confuse the jury. The court also noted that defense counsel had already extensively explored Davies-Khan's bias against defendant.
The scope of cross-examination is committed to the sound discretion of the court and will not be disturbed on appeal absent a clear abuse of that discretion. State v. Mieles, 199 N.J. Super. 29, 41 (App. Div. 1985). Thus, there is no abuse of discretion in limiting the extent of cross-examination on a witness's bias where the witness has been thoroughly cross-examined on the issue of bias and the jury has been made aware of the reasons for the bias. See State v. Engel, 249 N.J. Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991). Here, the court noted that Davies-Khan had been subjected to cross-examination for seven and one-half hours and had "made it clear that she's not an admirer of [defendant.]" Additionally, the jury was aware that she objected to him being paid by PECC while serving as a member of the Board because she was still waiting for a decision determining what she could do. Hence, her bias was disclosed before the jury, and the jury was aware of the reason for her bias. Ibid. We therefore find no abuse of discretion in the court's ruling disallowing further cross-examination on the issue of Davies-Khan's bias against defendant stemming from Davies-Khan's alleged connection to a political faction that was opposed to defendant.
In Points II and III, defendant, for the first time on appeal, contends the court improperly permitted the State to introduce evidence of defendant's actions in connection with PECC prior to dates charged in the indictment, April 13 to May 5, 2005, and the admission of prior bad acts without an accompanying limiting instruction. This evidence consisted of defendant's first interactions with PECC in 2004, his preparation of a spread sheet for the business, his request for $500 to create a business plan for PECC, his indication that it would cost PECC $1000 for him to facilitate a contract with the Board, his request for a one percent interest in PECC in exchange for his services on its behalf, and his repeated calls to PECC on April 12, 2005, asking them to lower their bidding price for a Board contract.
Because defendant raised no objection to this evidence during trial, we review the claimed errors under the plain error rule, namely, whether the admission of this evidence was "clearly capable of producing an unjust result." R. 2:10-2. Plain error is not simply any error, but one that must be "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. Macon, 57 N.J. 325, 336 (1971).
Reviewed under this standard, we conclude there was no error committed, let alone any error capable of leading the jury to a result it would not have otherwise reached. First, defense counsel's failure to object to this evidence at trial is evidence of a lack of prejudicial impact. Id. at 341 ("failure to object may suggest the error was of no moment in the actual setting of the trial"). Second, the failure to object "'also deprive[d] the court of the opportunity to take curative action.'" State v. Papasavvas, 163 N.J. 565, 625-26 (2000) (quoting State v. Timmendequas, 161 N.J. 515, 575-76 (1999)). That said, however, the evidence was relevant to establish the background of how the parties' relationship developed. While we agree that evidence defendant sought $1000 to facilitate PECC's contract with the Board and his attempt to secure an interest in PECC in exchange for facilitating a contract was prejudicial, its probative value of demonstrating defendant's repeated attempts to extract financial gain from PECC in exchange for facilitating a contract with the Board outweighed any prejudice in admitting this evidence. Moreover, both Neville and Hunton-Clarke, in their direct testimony on behalf of defendant, also provided background information that included some of the very conduct to which defendant now raises an objection.
Defendant maintains that the trial court erroneously failed to downgrade his sentence, arguing that additional mitigating factors should have been applied. We disagree.
"In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). Defendant was convicted of a second-degree offense for which there is a presumption of incarceration for at least five years but no more than ten years. N.J.S.A. 2C:44-1f(1)(c). Defendant received the minimum custodial term that may be imposed for a second-degree crime.
Here, defendant was sentenced to five years in jail after he was convicted of one count of second-degree bribery. The court considered the aggravating factors urged by the State as well as the mitigating factors proffered by the defense. The court accorded minimal weight to the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), and that imprisonment would entail excessive hardship to defendant and his family, N.J.S.A. 2C:44-1(b)(11). However, the court accorded "tremendous weight" to the need to deter defendant and others from violating the law. The court explained:
The significant aggravating factor here is [nine]. [Nine] is, for those of you who are not familiar with the aggravating factors or mitigating factors, the need for deterring . . . defendant and others from violating the law. We have a situation in this state that's very alarming, appalling, frightening, whatever word you want to use. It is almost of epidemic-like proportions of people who either get elected or chosen to public office who then wind up breaking the law and going to jail. In the past year or so we have had many from our immediate communities involved in that type of situation. I'm not even going to mention the communities involved except to say that these communities are in Atlantic County. It's very, very, very upsetting. It is very disappointing, it is very disheartening to see something like that occur, but yet this type of crime by public officials has become almost epidemic[-]like. I think the prosecutor used the word a scourge in our state but it's almost like an epidemic. Newark, Essex County, other areas, middle Jersey, southern Jersey, there are no easy answers to it, but certainly the need to deter this defendant and others from committing crimes involving a breach of the public trust. After you've been elected or appointed, and all of that trust has been put in you and then to go and defy that public trust is appalling and must be given tremendous weight as the prosecutor has correctly argued, I might add.
The court found that three mitigating factors were of substantial weight: (1) "[D]efendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[,]" N.J.S.A. 2C:44-1(b)(7); (2) "[D]efendant's conduct was the result of circumstances unlikely to recur[,]" N.J.S.A. 2C:44-1(b)(8); and (3) "The character and attitude of . . . defendant indicate that he is unlikely to commit another offense[,]" N.J.S.A. 2C:44-1(b)(9). The court concluded that the aggravating and mitigating factors, qualitatively, were in equipoise and there was no basis to sentence defendant as a third-degree offender as defense counsel urged.
Having closely examined the record in light of the parties' arguments, we conclude that the trial judge engaged in a careful qualitative analysis and weighing of the aggravating and mitigating factors, and imposed a sentence that hardly shocks the judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).