March 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERRELL MOORE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-03-0460.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2010 -
Before Judges Grall, C.L. Miniman and LeWinn.
A jury acquitted defendant Jerrell Moore of murder, N.J.S.A. 2C:11-3, but found him guilty of second-degree passion- provocation manslaughter, N.J.S.A. 2C:11-4(b)(2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b).*fn1 The judge merged the convictions for possession with an unlawful purpose and manslaughter, and sentenced defendant, on manslaughter, to a ten-year term of imprisonment, subject to parole ineligibility and supervision terms mandated by N.J.S.A. 2C:43-7.2, and, on possession of a handgun without a permit, to a concurrent five-year term. Appropriate fines, penalties, and assessments were also imposed.
Defendant appeals. He claims error warranting reversal of his convictions based on: the State's admission of a witness's prior statement to rebut a suggestion of recent fabrication; admission of evidence that defendant purchased ammunition and practiced shooting at a firing range prior to this homicide; and prosecutorial excess in the State's opening and closing statements. Defendant also contends that the judge abused his discretion in imposing the maximum sentence for manslaughter. Finding no abuse of the judge's discretion warranting reversal of his convictions or sentence, we affirm. There is, however, a clerical error in the judgment of conviction that requires a remand to correct the mistake and bring the judgment into conformity with the verdict and the record of the sentencing proceeding. The judgment of conviction reflects two convictions and sentences for manslaughter rather than one conviction and sentence for manslaughter and another for possession of a handgun without a permit.
The State's theory of the case was that on the afternoon of November 5, 2005, defendant shot and killed Jerry Jules because he had not repaid a debt. In October, defendant had told Michael Hostler that Jules owed him money for drugs he had taken from him, and on October 31, he told Ebone Stadard that he was looking for Jules because he "had taken off with some stuff." According to another witness, defendant gave Jules money when he was paroled and wanted it back.
Around noon on November 5, defendant picked up Hostler, and they rode around in a white Crown Victoria registered to defendant's mother. Malik Boynton was sitting on the porch of his mother's home with friends and saw the Crown Victoria pass the residence, which is on DeWitt Avenue in Asbury Park. Jules had been with Boynton and his friends on the porch earlier, but he left to go to a pizza place nearby.
By Hostler's account, as he and defendant were riding around, they saw Jules near the pizza place. Jules and defendant had words about money, and after their conversation defendant was upset. Defendant told Hostler that Jules was "playing" him, and he was tired of Jules saying he was going to pay.
Defendant and Hostler drove for a while and then parked in an alley near the home of Boynton's mother. Jules had returned to the porch, and defendant got out of the car, walked toward the porch and asked Jules to talk to him. When Jules came down the steps, defendant asked if he had "it" yet. Jules said he did not and would give "it" to defendant when he did. Defendant then grabbed Jules by his sweatshirt, pulled, struggled with and punched Jules.
Boynton, Kendall, James Lumsford and Frankie Williams left the porch to assist Jules. Hostler got out of defendant's car but did not join the fight. The brawl went on for several minutes. When it ended, defendant stepped back from the sidewalk into the street and pulled a gun from his waistband. Jules ran down the street, and his companions retreated to the porch. Defendant chased Jules, aimed as if he were "doing target practice" and fired multiple shots. When Jules fell to the ground, defendant turned with the gun and asked who else "wanted some."
By then Hostler was in the driver's seat of the Crown Victoria. Defendant got into the car, and they left.
In the car, defendant placed a phone call and said, "I got him." Hostler asked defendant why he had shot Jules rather than one of the men who jumped him, and defendant said he did it because Jules was the one who caused the whole thing.
Darrell Bartee, who lived in the neighborhood, passed by the porch before the shooting began and noticed a white car that looked like a police car parked in the alleyway. In his rearview mirror, he saw Jules run, heard gunshots and saw Jules fall. As he was backing up to stop and lend assistance, he saw the white car and its two occupants pass and noted that the license plate number had the letters "PEX" or "PXE." The Crown Victoria's license plate number begins with "PXE." Bartee administered CPR and later gave a written statement to the police.
In the aftermath, for reasons related to his drug business, Boynton removed drugs, money and a cell phone from Jules's person before the police arrived. He later sold the drugs. Jules died at the scene due to gunshot wounds in his back and thigh. The bullets passed through him and were not recovered, but nine-millimeter shell casings were found.
Over defendant's objection, the State presented evidence that on September 9, 2005, defendant and Hostler went to a pistol range in Lakewood, purchased nine-millimeter bullets, rented handguns, and took target practice. Records kept at the range corroborated the purchases but not the shooting session. According to the owner of the pistol range, it was his practice to keep such records.
There was no physical evidence linking defendant to the crime, but several eyewitnesses identified him as the shooter.
After speaking to Jules' mother, Boynton gave a statement to the police on November 7, 2005 that is generally, but not wholly, consistent with his testimony at trial. In his statement, Boynton said he saw defendant shooting at Jules. The circumstances under which that prior statement was admitted are discussed in addressing defendant's claim that the judge should not have allowed the State to introduce it.
Defendant was not the first person suspected to be Jules' killer. After the shooting, the Asbury Park police stopped MyGod Rush, who was driving a Black Acura. Rush did not cooperate at first and asked if the stop was "about that shooting on DeWitt" and whether he had "caught a body." Rush tested positive for gunshot residue, and after extensive questioning admitted that he was at the scene of the crime and a passenger in the Crown Victoria when Jules was shot by his friend, Tyquan Henderson. Rush was charged as an accomplice to murder, but that charge was dropped after defendant's arrest and Hostler's statement implicating defendant. Although there was evidence that Rush also had motive to retaliate against Jules for pulling jewelry from Rush's neck on a prior occasion, the State ultimately concluded that the statements Rush made after his arrest were unreliable and inconsistent with the evidence. Henderson testified at defendant's trial and denied any involvement.
On appeal, defendant argues:
I. DEFENDANT MOORE WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE ADMISSION OF IMPROPER EVIDENCE IN THE FORM OF A WITNESS'S PRIOR OUT OF COURT STATEMENT INCULPATING THE DEFENDANT AND PREJUDICIAL OTHER CONDUCT EVIDENCE ABOUT DEFENDANT'S ALLEGED PRIOR VISIT TO A SHOOTING RANGE.
A. Allowing a Testifying Witness's Prior Statement to be Read into the Record in its Entirety was in Error (Raised Below).
B. The Trial Judge Erred in Admitting Evidence that Defendant Moore Patronized a Shooting Range Months Prior to November 5, 2005 (Raised Below).
II. DEFENDANT MOORE'S CONVICTION MUST BE REVERSED BECAUSE PERVASIVE PROSECUTORIAL MISCONDUCT RENDERED HIS TRIAL FUNDAMENTALLY UNFAIR (NOT RAISED BELOW).
A. The Prosecution Engaged in Prosecutorial Excess and Improperly Vouched for the Facts at Issue in this Case.
B. The Prosecution Improperly Stated that Defendant Used an Alias.
III. THE TEN (10) YEAR SENTENCE IMPOSED ON DEFENDANT MOORE FOR PASSION PROVOCATION MANSLAUGHTER WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF THE COURT'S SENTENCING DISCRETION.
We review rulings on evidence for abuse of the trial judge's discretion. State v. Barden, 195 N.J. 375, 390-91 (2008) (evidence of other crimes); State v. Sullivan, 24 N.J. 18, 39 (evidence to rebut claim of recent fabrication), cert. denied, 355 U.S. 840, 78 S. Ct. 52, 2 L. Ed. 2d 51 (1957); State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.) (same), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (internal quotations omitted); accord Barden, supra, 195 N.J. at 390-91. Moreover, even when an evidentiary ruling is erroneous, reversal is not warranted unless it has the capacity to give us a reasonable doubt about the verdict. R. 2:10-2.
The judge permitted the State to introduce the statement Boynton gave to the police to rebut defense counsel's suggestion that Boynton's trial testimony was fabricated. The ruling was made in this context. Defense counsel cross-examined Boynton about several things he said during his testimony at trial but had not told the police and questioned Boynton about his motivation to give testimony favorable to the State. From Boynton, defense counsel elicited an admission that prior to this homicide Boynton had been charged with, but not convicted of and sentenced for, crimes arising from three separate incidents. On further questioning from defense counsel, Boynton admitted that he had since been sentenced for those crimes. Defense counsel then asked him about the possibility that the Parole Board would give him favorable consideration because of his testimony against defendant.
Based on that cross-examination, the judge reasoned that defense counsel implied Boynton had recently fabricated portions of his testimony. Therefore, the judge allowed the State to redirect Boynton and admit his entire statement and questions and answers given during his interview to rebut the inference that his trial testimony was tailored to improve his prospects for parole.
It is generally improper for a party to bolster the credibility of its witness with prior consistent statements. Neno v. Clinton, 167 N.J. 573, 580 (2001). Nevertheless, N.J.R.E. 803(a)(2) allows admission of prior consistent statements "offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive."
Defendant does not argue that the judge erred in applying N.J.R.E. 803(a)(2). Rather, he contends that the admission of Boynton's out-of-court statements, which referred to matters not raised by defense counsel's questions, was the product of an erroneous application of the doctrine of completeness, N.J.R.E. 106. But the judge did not rely on N.J.R.E. 106, and for that reason the claims addressing the limits of the doctrine of completeness do not require discussion. R. 2:11-3(e)(2).
Although we recognize that Boynton's out-of-court statements included assertions relevant to defendant's guilt that Boynton did not repeat while testifying at trial and excluded some of the details he provided at trial, we see no clear error of judgment in the judge's application of N.J.R.E. 803(a)(2). Because of defense counsel's suggestion of a recent motive for Boynton to testify falsely at trial, Boynton's prior account of defendant's actions had probative force beyond repetition of his trial testimony. State v. Chew, 150 N.J. 30, 81 (1997); see Muhammad, supra, 359 N.J. Super. at 388; State v. Johnson, 235 N.J. Super. 547, 555 (App. Div.), certif. denied, 118 N.J. 214 (1989). Moreover, after review of Boynton's testimony and prior statements and considering the other eyewitness testimony, we have no doubt that the verdict would have been the same if the judge had excluded the evidence.
Defendant also contends that the trial judge abused his discretion by admitting testimony about defendant's visit to the shooting range. He argues that the prerequisites of N.J.R.E. 404(b) regarding the use of such "bad act" evidence were not met. We question whether taking target practice at a shooting range - a perfectly legal action - is a "bad act" subject to exclusion pursuant to N.J.R.E. 404(b). But, because N.J.R.E. 404(b) was deemed applicable at trial, we address defendant's claims.
N.J.R.E. 404(b) addresses the danger that jurors exposed to other-crimes evidence "may convict the defendant because he is a 'bad' person in general." State v. Cofield, 127 N.J. 328, 336 (1992) (internal quotations omitted). The evidence rule prohibits admission of evidence of a party's other "crimes, wrongs or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." Such evidence may be admitted, however, if probative of "intent" or "absence of mistake or accident when such matters are relevant to a material issue in dispute." Barden, supra, 195 N.J. at 388. Other-crimes evidence should be excluded unless it is 1) "relevant to a material issue"; 2) there is "clear and convincing" evidence of the prior bad act; and 3) the "probative value of the evidence [is] not . . . outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338.*fn2 Defendant argues that the State did not satisfy any of the three prongs.
The parties dispute whether defendant waived his right to have the "clear and convincing" prong of Cofield proved because he waived a N.J.R.E. 104(a) hearing on the issue. We need not decide that question. Hostler's testimony that he went to the range with defendant and took target practice with him - if credited - was sufficient to prove clearly and convincingly that the visit took place. Although we recognize that the business records of the shooting range did not document defendant's target practice on the day in question, that does not change our view of the adequacy of Hostler's testimony.
As to the relevance of the shooting range evidence, the Supreme Court has held that a defendant's familiarity with a firearm is relevant to prove that the defendant's firing of a weapon was intentional rather than accidental or mistaken. State v. Kostovich, 168 N.J. 448, 482, 485 (2001) (defendant's familiarity with firearms suggested that he fired his weapon intentionally, not accidentally, and that he knew death would result from firing his weapon); Loftin, supra, 146 N.J. at 384 (defendant's competency in handling firearms was relevant to show that defendant intended to kill his victim and that the shot was "not the result of an accidental discharge caused by an inexperienced marksman"). To the extent that the shooting range evidence also suggested planning in furtherance of defendant's design to kill Jules, the jury's verdict of provocation manslaughter indicates that they rejected that inference. Given that defendant was charged with killing Jules by shooting him, the State was entitled to introduce evidence tending to show that defendant was familiar with guns and therefore discharged the weapon with knowledge of the likelihood that the bullet would strike Jules. The shooting range evidence was probative on those points.
As required by State v. Blakney, 189 N.J. 88, 93 (2006), when the shooting range testimony was given and again in final instructions to the jury, the judge explained the limited use the jurors could make of it. He explained that the jurors could not consider the target practice to decide whether defendant shot at Jules but only to decide whether he intended to kill Jules if they found that he shot at Jules. Additionally, the judge cautioned that the jurors could not consider defendant guilty simply because he practiced shooting. In the absence of any evidence suggesting otherwise, we assume that the jurors followed that clear direction. See State v. Manley, 54 N.J. 259, 270 (1969).
We agree with the judge's conclusion that neither N.J.R.E. 404(b) nor N.J.R.E. 403 required exclusion of this evidence, and see no basis for finding a clear error of judgment warranting reversal.
Defendant complains about what he views as the prosecutor's "colorful" and "melodramatic" opening statement that included improperly characterizing the defense's reliance on MyGod Rush's confession as a "diversion." In addition, defendant alleges that the prosecutor vouched for the evidence - in his opening, by referring to the State's evidence as an avalanche, and in summation, by casting his argument for inferences from the evidence in terms of what "we know." He also argues that the prosecutor impermissibly called the jurors to arms by arguing, "We don't allow the Jerrell Moores of this world to decide who lives and dies based on where a crime occurs" and following that statement with others about not allowing persons like defendant to decide what "sins" warrant a "death sentence" or to kill a man on the streets of Asbury Park on a Saturday afternoon. Finally, he contends that the State's witnesses and the prosecutor should not have been permitted to refer to defendant by his nickname, "Tall Dog," and the witnesses by their nicknames.
"Prosecutorial misconduct is a basis for reversal of a criminal conviction if the conduct was so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002); see State v. Timmendequas, 161 N.J. 515, 575 (1999). Measuring the conduct to which defendant objects against that standard and considering the permissibility of "vigorous and forceful arguments," State v. Rose, 112 N.J. 454, 518 (1988), that do not involve "inordinate exposure to unduly prejudicial, inflammatory commentary," State v. Williams, 113 N.J. 393, 453 (1988), we see no basis for reversal. Generally, the prosecutor's opening argument was based on what he intended to prove and the closing was based on the evidence introduced at trial and it how it tended to prove the crimes at issue. State v. Frost, 158 N.J. 76, 82 (1999) (closing); State v. Pennington, 119 N.J. 547, 576-77 (1990) (opening). With respect to references to defendant as "Tall Dog," we simply note that this nickname is not "pejorative," and in that regard "Tall Dog" is unlike nicknames that we have found objectionable and prejudicial. State v. Paduani, 307 N.J. Super. 134, 147 (App. Div.), certif. denied, 153 N.J. 216 (1998). Moreover, as the witnesses generally knew defendant and referred to one another by nickname rather than given name, the references were not wholly gratuitous.
While we do not approve of the prosecutor's comments about what "the Jerrell Moores of this world" may and may not do, we cannot say that those statements or any of the other conduct to which defendant objects was so clearly and unmistakably improper as to substantially prejudice defendant's right to have the jury fairly evaluate the evidence. State v. Ingram, 196 N.J. 23, 43 (2008); see State v. Feal, 194 N.J. 293, 312 (2008); Timmendequas, supra, 161 N.J. at 576; R. 2:10-2. Viewed singly and collectively, the prosecutor's acts were not "so egregious" as to permit us to conclude that defendant was deprived of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994) (internal quotations omitted).
Defendant also argues that his ten-year sentence, which is at the top of the statutory range for passion-provocation manslaughter, is excessive. In particular, he contends that the trial court erred by relying on aggravating factor one, N.J.S.A. 2C:44-1(a)(1), which applies when the offense was committed in an especially heinous, cruel, or depraved manner. The judge found this factor based on his determination that this provocation manslaughter bore greater resemblance to murder than to provocation manslaughter.
In State v. Teat, 233 N.J. Super. 368, 373 (App. Div. 1989), we held that a jury's guilty verdict on passion-provocation manslaughter "is not the equivalent, for sentencing purposes, of an affirmative finding of fact" that the defendant actually did act under passion or provocation. Instead, the verdict reflects the jury's determination that the State failed to prove, beyond a reasonable doubt, that the defendant was not acting under passion or provocation. Ibid. Thus, while bound by the jury's verdict, a judge "may find that a particular passion/provocation manslaughter is closer to murder than others would be and should therefore be more severely punished" than other provocation manslaughters. Id. at 374. The trial judge's factual findings can be supported by a preponderance and do not require proof beyond a reasonable doubt. See State v. O'Donnell, 117 N.J. 210, 215 (1989).
This court has no authority to substitute its assessment of the significance of the facts adduced at trial or the balance of aggravating and mitigating factors. State v. Bieniek, 200 N.J. 601, 608 (2010). If the judge's factual findings are supported by the record, we must affirm. Ibid. Here, the trial judge's finding that defendant's killing of Jules was closer to murder than manslaughter is amply supported by the record. A battery is "almost as a matter of law" adequate provocation, State v. Lawton, 298 N.J. Super. 27, 32-33 (App. Div. 1997) (internal quotations omitted), but where the defendant creates the situation that causes the passion-provocation it will not reduce murder to manslaughter. State v. Harris, 141 N.J. 525, 572-73 (1995); see State v. Pasterick, 285 N.J. Super. 607, 617 (App. Div. 1995). Moreover, for a defendant to claim passion-provocation manslaughter, the victim of the homicide must be the one who provoked the defendant. See State v. Lewis, 233 N.J. Super. 145, 151 (App. Div.), certif. denied, 111 N.J. 584 (1988). Given the testimony that defendant instigated the scuffle with Jules and was assaulted by Jules's companions, not Jules himself, we see no basis for disturbing the judge's determination.
Affirmed, but remanded for entry of a corrected judgment of conviction. We do not retain jurisdiction.