March 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MYNDELL JACKSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2606.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2010
Before Judges Graves, Messano and Waugh.
In a five-count indictment defendant Myndell Jackson was charged with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third-degree terroristic threats, N.J.S.A. 2C:12-3 (count five). Following a trial, a jury acquitted defendant of attempted murder, but he was convicted on the remaining four counts.
At sentencing on July 25, 2008, the court merged defendant's conviction for possession of a handgun for an unlawful purpose (count four) with his conviction for aggravated assault (count two) and sentenced defendant to an eight-year prison term subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent eight-year term for possession of a handgun without a permit (count three) and a consecutive four-year term for terroristic threats (count five). Thus, defendant was sentenced to an aggregate term of twelve years imprisonment with eight years subject to the provisions of NERA. Appropriate monetary penalties were also imposed.
On appeal, defendant presents the following arguments:
THE TRIAL COURT SHOULD HAVE ORDERED A JUDGMENT OF ACQUITTAL AS TO AGGRAVATED
ASSAULT BECAUSE THE EVIDENCE FAILED TO SUFFICIENTLY ESTABLISH THAT DEFENDANT ACTED WITH PURPOSEFUL INTENT. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, pars. 1, 9, 10 (Not Raised Below).
THE TRIAL JUDGE IMPROPERLY CHARGED THE JURY ON A THEORY OF AGGRAVATED ASSAULT THAT DID NOT APPLY TO THE FACTS OF THIS CASE. THE ERRONEOUS CHARGE CLEARLY HAD THE CAPACITY TO CONFUSE AND MISLEAD THE JURY AND REQUIRES REVERSAL OF DEFENDANT'S AGGRAVATED ASSAULT CONVICTION. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, pars. 1, 9, 10 (Not Raised Below).
THE TRIAL JUDGE ERRED BY CHARGING THE JURY ON TERRORISTIC THREATS BASED ON THE FIRING OF THE GUN AT THE APARTMENT DOOR WHEN THAT ACT WAS NOT RELATED TO THE STATE'S THEORY OF GUILT. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, pars. 1, 9, 10 (Not Raised Below).
DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT MUST BE REVERSED BECAUSE THE TRIAL JUDGE CHARGED THE WRONG THEORY OF ATTEMPT LIABILITY. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, pars. 1, 9, 10 (Not Raised Below).
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE APPROPRIATE LESSER-INCLUDED OFFENSES TO AGGRAVATED ASSAULT. U.S. Const. Amend. XIV;N.J. Const. (1947) Art. I, pars. 1, 9, 10 (Not Raised Below).
THE PROSECUTOR'S MISCONDUCT IN CLOSING ARGUMENT COMPELS REVERSAL OF THE CONVICTIONS, AS DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE PROSECUTOR MISSTATED TO THE JURY EVIDENCE PRESENTED AT TRIAL AND AGAIN AT SENTENCING WHEN SHE SOUGHT TO PENALIZE DEFENDANT FOR EXERCISING HIS RIGHT TO TRIAL. U.S. Const. Amend. XIV; N.J. Const. Art. I, pars 1, 9, 10 (Not Raised Below).
A. CLOSING ARGUMENT
B. SENTENCING POINT VII
THE SENTENCE IMPOSED WAS EXCESSIVE; THE FAILURE TO MAKE ADEQUATE FACTUAL FINDINGS TO SUPPORT THE AGGRAVATING FACTORS FOUND AND THE FAILURE TO FIND MITIGATING FACTOR ELEVEN COMPEL REMAND FOR RESENTENCING.
A. AGGRAVATING FACTOR (1)
B. AGGRAVATING FACTORS (3), (6) AND (9)
C. FAILURE TO FIND MITIGATING FACTOR
After considering these arguments in light of the record and applicable legal standards, we affirm in part, reverse in part, and remand for resentencing.
On the evening of May 27, 2005, Jamila Bishop (Bishop),*fn1
a security guard, was returning from work to her apartment in
the Georgia King Village housing complex in Newark. As she entered the
lobby of the building, she threw away her cigarette, and defendant
said, "how do you know I didn't want none of that cigarette?"
According to Bishop, defendant "kept going on and on, on and on." He
was with four friends, one of whom told him to "leave [Bishop] alone."
Defendant responded, "fuck her, she's not tough." Then, to Bishop,
defendant said, "I send you where your brother is." Because Bishop's
brother had been murdered, she felt that defendant "would kill [her]."
Bishop told defendant that her boyfriend*fn2 was upstairs, and if he had anything to say to her, he could "take it up with [him]." At that point, defendant "started screaming . . . 'no problem, no problem. I'll go upstairs, I'll go upstairs.'" Bishop, defendant, and his friends then boarded the elevator, but defendant's friends did not go all the way to Bishop's floor.
When defendant and Bishop arrived at Bishop's apartment, defendant began banging on the door, and Bishop's boyfriend answered. Defendant told him, "you don't know her, I knew her for 15 years, she's a trouble maker, she's this, she's that." Defendant then punched Bishop's boyfriend in the face, and the two men began fighting inside the apartment. As the fight continued, defendant's friends arrived and "dragged him out into the hallway." In an unsuccessful attempt to re-enter Bishop's apartment, defendant banged on the door so hard that Bishop was unable to open it after defendant left.
Bishop then called the security desk and the Newark Police Department. After the police responded and building maintenance repaired Bishop's door, Bishop's parents arrived. As the evening progressed, Bishop's parents and boyfriend left, and her friend, also named Jamilla, stayed with her.
At approximately 11:00 p.m., Bishop went down to the lobby and talked to various people about the incident, including the security officer, Zipporah Thomas (Thomas), who had just started her shift. According to Thomas, Bishop "was upset" but not crying, and she never mentioned defendant's name. Sometime thereafter, Bishop returned to her apartment.
Between 2:00 and 2:30 a.m., Thomas saw defendant enter the building. She recognized defendant because she had seen him before at the apartment complex, and she thought he lived there. About three minutes later, Thomas heard "about four" shots fired and immediately called the Newark Police Department "for backup."
According to Bishop, she was sitting on her couch, talking to Jamilla, at approximately 2:30 a.m. on May 28, 2005, when she heard "tapping at the door" and saw "a shadow underneath the door." Bishop went to the door, looked through the peephole, and saw defendant with his ear "to the door." Bishop testified: "I knew he wasn't coming back to apologize or to talk to me," and she said, "who the fuck is it?" As Bishop was watching through the peephole, she saw defendant back away from her door with a gun in his hand. Bishop testified she could see defendant's "face [as] clear as day," and she heard five shots as she "hit the floor." All five shots were close to the peephole but none of the bullets penetrated the steel door.
Bishop immediately called "security downstairs" and then 9-1-1. Thomas confirmed that she received a call from Bishop "within about a minute" after she heard the shots. However, in her investigation report, Thomas noted: "I never heard any shots fired." When questioned about her report, Thomas testified she made "an honest mistake" because she "failed to proofread the report before [she] handed it in." After receiving Bishop's call, Thomas secured two of the "four or five exits" and did not see defendant leave the building.
Bishop told the police that defendant was the person who fired the shots into her door. Thomas indicated in her written report that she did not know the shooter's name, but at trial she testified: "I knew who had walked in the building a few minutes before firing the shots. I knew that it was him." According to Thomas, she did not know defendant's name until she received a subpoena to testify at trial.
Detective Edgardo Gonzalez, an expert in the field of ballistics, examined the bullets and shell casings that the police recovered. He testified that .22 caliber hollow point bullets were used in the shooting. He explained that hollow point ammunition was "more lethal on . . . the human or the target" because "you get better expansion" upon impact.
After the State rested, defendant called two witnesses: Francis Riley, an investigator employed by the Public Defender, and Detective Lawrence Kates, a member of the Newark Police Department. Riley took photographs from inside Bishop's apartment in an attempt to establish that Bishop would not have been able to see anything under her door or anyone's face through the peephole in the door.
Detective Kates testified that he interviewed Bishop after the shooting, and she did not tell him "about the cigarette earlier that night"; that her friend, Jamilla, was with her at the time of the shooting; or that she saw "shadows at the bottom of her door." However, Bishop told Kates that her boyfriend had a fight with defendant earlier that night; "she saw feet at the bottom of her door"; and when she looked through the peephole, she saw defendant on the other side of the door with a gun right before the shots were fired.
Defense counsel told the jury in her summation that Bishop's testimony was "one big inconsistency" and that the case was "about who fired those shots" and "identification." She also argued that the State failed to prove, "beyond a reasonable doubt, that Mr. Jackson was the shooter." On the other hand, the State argued that Bishop "only saw one person" backing away from her door with a gun and that "[m]otive, means, and opportunity" all pointed to defendant.
In his first point, defendant argues the trial court erred when it failed to direct a judgment of acquittal on the aggravated assault count. Pursuant to Rule 3:18-1, a trial court "shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal . . . if the evidence is insufficient to warrant a conviction." The test "is whether,viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). "In assessing the sufficiency of the evidence, the relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Martin, 119 N.J. 2, 8 (1990) (internal quotation marks and citations omitted).
N.J.S.A. 2C:12-1(b)(1) states that a person commits second-degree aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly, or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J.S.A. 2C:11-1(b) defines "serious bodily injury" as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." In the present matter, the State alleged that defendant attempted to cause serious bodily injury to Bishop when he fired five shots into her door and this required the State to prove beyond a reasonable doubt that defendant's purpose was to cause serious bodily injury. N.J.S.A. 2C:5-1(a); see also State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986) ("[A]n attempt is purposeful not only because it is so defined by statute, but because one cannot logically attempt to cause a particular result unless causing that result is one's 'conscious object,' the distinguishing feature of a purposeful mental state.") (quoting N.J.S.A. 2C:2-2(b)(1)).
According to the State's proofs, defendant verbally threatened Bishop because he was angry over a cigarette that Bishop discarded, and he got into a fight with Bishop's boyfriend after he followed her to her apartment. Three or four hours later, he returned to Bishop's apartment with a handgun and tapped on her door. When Bishop responded and defendant knew she was in the area of the door, he shot five hollow point bullets, which are more lethal than other bullets, into the door. Moreover, based on the location of the bullet marks on Bishop's door, the jury could have inferred that defendant was aiming in the direction of Bishop's head or upper body. Under these circumstances, defendant was not entitled to a judgment of acquittal on the aggravated assault charge because a reasonable jury could have concluded that the evidence was sufficient to establish defendant's guilt beyond a reasonable doubt.
In his next point, defendant contends that he was deprived of a fair trial because the trial court instructed the jury on "a theory of aggravated assault that did not apply to the facts of this case." Because defense counsel did not object to the trial court's instructions, the argument must be evaluated under the plain error standard. R. 1:7-2; R. 2:10-2. Plain error in the context of a jury charge is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). In determining whether there was any error, the jury charge must "be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973).
Because Bishop was not injured, the State's prosecution of the aggravated assault charge was based on the theory that defendant attempted to cause serious bodily injury to Bishop. Accordingly, the State was required to prove that defendant acted with the purpose to cause Bishop serious bodily injury. McAllister, supra, 211 N.J. Super. at 362 (stating that when a defendant attempts to cause bodily harm, "he is guilty only if the attempt to cause that result is purposeful"). Nevertheless, the trial court did not limit the jury's consideration to the State's theory that defendant attempted to cause serious bodily injury to Bishop. Instead, the court's instructions included the following: "A person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury purposefully, or knowingly, or under circumstances manifesting extreme indifference to the value of human life, recklessly causes such injury." Moreover, the jury verdict sheet conflated the two forms of aggravated assault by defining the crime as "either purposely, knowingly, or under circumstances manifesting extreme indifference to the value of human life, causing serious bodily injury or attempting to cause such injury to Jamila Bishop."
Because the jury charge and the verdict sheet failed to focus on the only applicable mental state----purposeful conduct---- we reverse the aggravated assault conviction. See State v. Green, 318 N.J. Super. 361, 373 (App. Div. 1999) (finding that trial court committed plain error by failing to limit jury's consideration on second-degree aggravated assault count to theory of attempt to cause serious bodily injury), aff'd, 163 N.J. 140 (2000). In the event of a retrial on count two, the jury charge and verdict sheet should be limited to an attempt to cause serious bodily harm to Bishop.
In point three, defendant argues for the first time that the jury charge on the terroristic threats count was defective. He claims the instructions referred to crimes of violence at the time of the shooting even though the State's theory "was based on the verbal threat to kill that defendant allegedly made to Jamila Bishop in the lobby of the building, hours before the shooting." The State argues in response that the jury instructions accurately stated the elements of the offense under N.J.S.A. 2C:12-3(a), and that "the charge was premised on [defendant's] commission of crimes of violence at the time he riddled Ms. Bishop's apartment door with bullets with the purpose to terrorize her." According to the State, defendant's prior verbal threat in the lobby of the apartment building "was part and parcel of the crimes arising from his shooting" and "showed that his purpose was to kill or cause serious bodily injury" to Bishop when he fired the shots into her apartment door.
The trial court's jury charge closely mirrored the model jury charge on terroristic threats, and defendant does not claim that the court failed to correctly state the elements of the offense. Additionally, the jury was instructed concerning its responsibility to reach a unanimous verdict, and we have concluded from our review of the record that there is no basis for finding that the jury was confused or that the court's instructions were "clearly capable of producing an unjust result." R. 2:10-2. We therefore conclude that the general unanimity instruction was adequate and that no plain error occurred. See State v. Parker, 124 N.J. 628, 640 (1991) ("[W]e are confident that there was no juror confusion in this case, and find that the general unanimity instructions were sufficient.").
Defendant's remaining arguments pertaining to his convictions are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(2). However, there are sentencing issues that need to be addressed.
When reviewing a sentence, this court must determine whether the findings of fact regarding aggravating and mitigating factors were based on "competent, reasonably credible evidence," whether the lower court applied "correct legal principles in exercising its discretion," and whether the application of the facts to the law constituted "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984); accord State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). We do not second-guess the trial judge's findings if they are supported by substantial evidence in the record. State v. Cassady, 198 N.J. 165, 180-81 (2009).
Pursuant to Rule 3:21-4(g), judges are required to state their reasons for imposing sentence and to make findings regarding the applicability "of particular aggravating or mitigating factors affecting sentence." While a court may be brief, State v. Dunbar, 108 N.J. 80, 97 (1987), it is insufficient for a court to merely enumerate its ultimate findings. State v. Kruse, 105 N.J. 354, 363 (1987). A trial court's reasons for imposing consecutive sentences must also be expressly stated. See State v. Molina, 168 N.J. 436, 442 (2001) (noting that a statement of reasons for consecutive sentences "is crucial to the appellate review process").
Defendant argues that the trial court erroneously found an aggravating factor, failed to find a mitigating factor, and failed to state its reasons for the sentence. While acknowledging that the sentencing court "did not detail the facts supporting each aggravating factor," the State contends that the court "implicitly found that the facts recited by the trial prosecutor supported the aggravating factors." We agree with defendant that a remand for resentencing is necessary because the court failed to adequately explain its reasons for the sentence.
On remand, defendant will have an opportunity to persuade the court that it found one inappropriate aggravating factor, N.J.S.A. 2C:44-1(a)(1); "overvalued" aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and (9); and erroneously found no mitigating factors. The court must also evaluate the factors enumerated in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 474 U.S. 1014, 106 S. Ct. 1193, 99 L. Ed. 2d 308 (1986), in determining whether the terroristic threats sentence should be served consecutively or concurrently. The focus at resentencing must be on the overall fairness of defendant's sentence. See State v. Natale, 184 N.J. 458, 488 (2005) ("The touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court.").
There is one additional sentence issue that has not been argued by the parties. The trial court sentenced defendant to an eight-year concurrent term for third-degree possession of a handgun without a permit (count three). Because the sentence exceeds the maximum ordinary term for a third-degree crime, N.J.S.A. 2C:43-6(a)(3), and there is nothing in the record before us to justify the sentence, it must be either corrected or explained at the remand hearing. See R. 3:21-10(b)(5) (stating that "a sentence not authorized by law" may be corrected at any time).
To summarize, we reverse the aggravated assault conviction and remand the matter for a new trial; we affirm defendant's convictions for third-degree possession of a handgun without a permit (count three), second-degree possession of a handgun for an unlawful purpose (count four), and third-degree terroristic threats (count five); and we remand for resentencing.
Affirmed in part, reversed in part, and remanded.