May 31, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHAAN LEWIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-03-0629.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 22, 2011
Before Judges Baxter and Koblitz.
Defendant Rashaan Lewis appeals his conviction after a jury trial of killing one man and wounding another in a shooting outside of Murphy's Bar in Asbury Park. He was convicted of all four counts of Monmouth County Grand Jury Indictment No. 07-03-0629: murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); attempted murder, N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3; (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(b) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four). On August 28, 2008, the court denied the State's motion for an extended term and sentenced defendant to an aggregate forty-five year custodial term consisting of: a thirty-year term without parole eligibility on count one; a fifteen-year term on count two, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run consecutive to the sentence imposed on count one; and a concurrent five-year term on count four. The trial court merged count three into count one. The mandatory penalties were also imposed, as well as $2000 in restitution payable to the Victims of Crimes Compensation Board (VCCB) at a rate of $1 per week. Defendant argues that several evidentiary rulings deprived him of a fair trial and that the sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, with the exception of his claim regarding the need for a restitution hearing pursuant to N.J.S.A. 2C:44-2(c), we affirm.
Defendant was convicted of murdering Herbert Hoover Bell, Jr. (also referred to as "Hoove" and "Hoover"), attempting to murder Ryan Cunningham and two related gun offenses. Defendant lived in Virginia at the time of the shooting but had previously lived in New Jersey and was here visiting family on August 19, 2006, the night the shooting occurred. He did not testify at trial. The State's witnesses testified about the contentious past between defendant and Hoover, including threats the two made to each other and allegations that defendant had robbed Hoover's house. Defendant knew Cunningham for several years as well, but they did not have any problems with each other.
One night, defendant, Hoover, Cunningham and several other individuals were at Murphy's. Defendant and Hoover fought outside of the bar. The fistfight lasted less than one minute and was described as Hoover hitting defendant while being positioned on top of him.
The State claimed that after defendant lost the fistfight with Hoover, he returned to Murphy's with a gun. Defendant's brother and cousin both testified that the cousin left the bar before the fistfight between defendant and Hoover and then returned to Murphy's in a white van after the fistfight to pick up defendant and his brother.
After defendant left the bar, another fight between two unrelated individuals occurred. Hoover was watching the fight. A dark car pulled up in front of Murphy's, and a man exited the car and began shooting. Hoover was shot and killed outside of the bar, and Cunningham, who was standing nearby, was shot in the hip and had to undergo emergency surgery.
Both bouncers working at Murphy's that night identified defendant as the shooter by viewing a videotape of the inside of the bar that night and then picking defendant's picture from a photographic array at the police station. Three additional eyewitnesses testified at trial that defendant was the shooter.
Two witnesses who were not at Murphy's the night of the shooting testified regarding phone calls they received that night. James Sinclair, who grew up with defendant, testified that he received a call from an individual who was at Murphy's that night informing him of Hoover's death and then received a call from defendant, in which defendant said, "yo, I f**ked up." One of defendant's cousins, Jermaine Stovall, testified that he first received calls from several individuals informing him of Hoover's death, and later defendant called Stovall and asked for money. Stovall ultimately called his friend Dana Braswell to accompany him that night. Braswell drove, and they traveled past Murphy's to White Castle where Stovall met with defendant.
Stovall said that defendant, who looked like he had been in a fight, told Stovall that "Hoover snuck him," meaning that Hoover caught him off-guard by starting the fight without warning. Stovall gave defendant approximately one hundred dollars before defendant left in a van.
Defendant raises the following issues on appeal:
THE CUMULATIVE IMPACT OF HEARSAY AND OTHERWISE INADMISSIBLE, HARMFUL TESTIMONY DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Partially raised below)
A. Braswell's Hearsay Testimony About Stovall's Explanation For Why Defendant Killed Bell.
B. Chaparro's Testimony That "There Was No Question That Rashaan Lewis Was the Shooter."
C. Sinclair's Testimony That He Was In Danger For Testifying Against Defendant. (Not raised below)
D. Conclusion POINT II
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE COURT ERRONEOUSLY PERMITTED THE JURY TO LEARN THAT DEFENDANT HAD TWICE PREVIOUSLY THREATENED TO KILL BELL.
THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON THE MURDER AND ATTEMPTED MURDER CONVICTIONS.
THE RESTITUTION ORDER SHOULD BE VACATED BECAUSE IT WAS IMPOSED WITHOUT AN INQUIRY INTO DEFENDANT'S ABILITY TO PAY.
In Point I of his brief, defendant argues that three incorrect evidentiary rulings deprived him of a fair trial. We review the trial court's evidentiary rulings under an abuse of discretion standard, provided the judge's rulings are not inconsistent with applicable law. State v. Kemp, 195 N.J. 136, 149 (2008). We also note that "[a] defendant is entitled to a fair trial but not a perfect one." State v. Martini, 131 N.J. 176, 321 (1993). Incidental legal errors that do not prejudice a defendant or render the proceedings unfair do not require that the defendant receive a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954). If "the legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." Ibid. "The predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007).
Defendant argues that the trial court erred in allowing Dana Braswell to testify to a prior statement she gave police because this testimony constituted inadmissible hearsay and violated his constitutional right to confrontation. Braswell was called to testify by the State, her previous statement was marked for identification, and Braswell used the statement to refresh her recollection pursuant to N.J.R.E. 803(c)(5). She also read portions of the statement aloud to the jury.*fn1 She read from her statement that defendant killed Hoover.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). "N.J.R.E. 802 starkly explains that '[h]earsay is not admissible except as provided by [the Evidence Rules] or by other law.'" State v. Buda, 195 N.J. 278, 292 (2008) (quoting N.J.R.E. 802).
"The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of our State Constitution both provide a criminal defendant with the right to . . . be confronted with the witnesses against him." State v. Nyhammer, 197 N.J. 383, 411-12 (2009) (internal quotation marks and citations omitted). "The right of confrontation is an essential attribute of the right to a fair trial, requiring that a defendant have a fair opportunity to defend against the State's accusations." State v. Branch, 183 N.J. 338, 348 (2005).
Braswell testified that at approximately 2:30 a.m. on August 19, 2006, she received a call from her long-time friend and former boyfriend Stovall, who was upset and insisted that he pick her up. She said when Stovall arrived at her house, he appeared a little "shaken up." He moved into the passenger seat. Braswell got into the driver's seat, and Stovall directed her where to go. She stated that Stovall "began to tell me that Hoover and [defendant] had a problem in the past with Hoov's girlfriend. Something about [defendant] broke into his house or whatever. I mean, that was pretty much the conversation. He didn't tell me at that point anything else, just their past." After she was provided with her statement, she read the portion indicating that Stovall told her why defendant "ended up killing Hoover."
Defendant objects to the following testimony of Braswell on direct examination, given after she was presented with her prior statement:
Q. And what was the conversation [when you and Stovall were driving]?
A. It was kind of like, you know, I was like, what's wrong. He hesitated to tell me, and then he was kind of like, Hoover's dead. I said, wow, that's crazy, what happened. And then he began to tell me about a past between [defendant] and Hoover.
Q. Could you now tell us what was going on in the conversation at that time and the subject matter of the conversation?
A. He began to tell me that Hoover and [defendant] had a problem in the past with Hoov's girlfriend. Something about [defendant] broke into his house or whatever. I mean, that was pretty much the conversation. He didn't tell me at that point anything else, just their past.
Q. Yeah, what are some of the first things he said to you? I'll say it that way.
A. I really don't remember the details. I'm just going by my statement.
Q. So, what does your statement say?
A. It says that he began to tell me the history between Hoover and [defendant]."
Q. And then what does it say?
A. And why [defendant] ended up killing Hoover. [After testifying that Stovall and defendant spoke at White Castle]
Q. All right. And what words did he use? What did he say to you?
A. "I can't believe [defendant] shot Hoover but Hoover was wrong too."
When Stovall was asked about his conversation with Braswell in the car, the prosecutor also had to refresh Stovall's recollection with his prior statement to police, after which Stovall said that the "[s]ubject matter of the conversation was about Hoover's dead. We heard Hoover was dead." Stovall testified that he did not remember any other part of the conversation he had with Braswell in the car. Stovall testified before Braswell, and the defense did not call Stovall back to the stand after her testimony.
Although defendant had an opportunity at trial to confront Stovall, the hearsay testimony as to what Stovall told Braswell is particularly problematic because it contained Stovall's outof-court statement, which did not fit within an exception to the hearsay rule. N.J.R.E. 802. The jury, however, was aware that Stovall was not a witness to the shooting. Braswell and Stovall both testified that Stovall spoke with many people about the shooting that night. Stovall's statement to Braswell might have been based on information he received from defendant or from others, or on speculation. The conclusory nature of the statement without an explanation of its basis diminished the statement's weight.
The error in admitting this hearsay testimony was harmless in light of the overwhelming evidence of guilt presented by the State including all of the eyewitness testimony and the subsequent identifications of defendant as the shooter. State v. Macon, 57 N.J. 325, 340 (1971). Several witnesses testified that either they saw defendant shooting Hoover or they saw him with the gun outside of Murphy's that night. Cunningham, the wounded victim, and Sinclair, who received a phone call from defendant on the night of the shooting, also testified regarding the past relationship between defendant and Hoover. Thus, Braswell's testimony as to what she said in her prior statement regarding what Stovall told her, though potentially damaging to the defense, was cumulative. Its admission was harmless given the overall strength of the State's evidence. R. 2:10-2.
Sergeant Raymond Chaparro of the Long Branch Police Department testified that he reviewed surveillance video recorded inside the bar on the night of the shooting. Defense counsel questioned Chaparro on cross-examination about his failure to view other available surveillance video. Chaparro said he viewed surveillance of the front door but did not view videotape from another camera that was aimed towards the DJ booth because the pictures were not of good quality. Defendant now argues that the following portion of Chaparro's testimony during defense counsel's cross-examination denied him a fair trial:
Q. So, in almost two years, you did not bother to watch the other angles of the tape?
A. There was no need to.
Q. You made up your mind right there on the spot that [defendant] was the shooter?
A. I made up my mind? No.
Q. So, you're still open-minded about this?
A. No, I definitely know from the witness and the investigation that he's the shooter.
Q. But if you never bothered to watch that tape to see if there was any other evidence on that tape that it could have been somebody else?
A. The best view for anybody to see that tape was from the front-door entrance where they could see people coming and going from the bar.
Q. How do you know what's on that tape? You don't know. You never bothered to watch it.
A. I didn't.
Q. You just never bothered in almost two years?
A. There was no need to. There was no question, no doubt.
A. There was no question we were trying to get a hundred percent ID on [defendant], which I was able to make that he was in the bar at that time, which was the first confirmation. The second ID was to confirm [Citro] was a hundred percent that who he picked out was, in fact, [defendant], which he pointed out a person he did not know his name, which I knew was [defendant].
There was no need to look any further than the tape. [Evans] viewed the tape from the same point of view, was able to see everybody clearly as coming in and out of the bar, which had the best angle, and he positively a hundred percent identified [defendant] as the shooter.
Q. And based on two identifications from two bouncers, that was what you were basing your determination that [defendant] was the shooter? That was it?
A. They were a hundred percent sure he was the shooter.
Q. They were a hundred percent sure?
Q. So, based on that, on that evening, that's what you were going on that he was the shooter?
A. On that evening, yes.
Q. So, you weren't going to leave room for the possibility that anything else was on those surveillance tapes?
A. There was no question there was nothing on those surveillance tapes. We knew after further investigation that the shooting takes place outside. There was no tapes of outside to view. I wish there was tapes to view outside. There were no tapes. All we needed to do was make a positive ID of who it was. There was no question that [defendant] was the shooter.
Defense counsel elicited this testimony and did not move to strike any of it. At one point, defense counsel repeated Chaparro's statement that the bouncers were one hundred percent sure that defendant was the shooter, reframing the statement as a question.
Concerns arise if there is an "implication that a testifying police officer somehow is in possession of superior knowledge than what is presented to the jury and, hence, his testimony is worthy of greater weight." Kemp, supra, 195 N.J. at 155. Chaparro did not allude in his testimony to anything that was not presented to the jury, and thus, the admission of this testimony did not constitute error. Defense counsel's cross-examination of Chaparro sought to undermine the State's witnesses' identifications of defendant as the shooter. In essence, defendant is arguing that his attorney should not have pursued this line of cross-examination. For defendant to claim that the court should have sua sponte interfered with his own counsel's questions on cross-examination is more properly framed as a complaint regarding his counsel's trial strategy. Trial courts are discouraged from interfering with the questioning of witnesses absent objection from either party as such interference creates a risk of a perception of bias by the jury. See State v. O'Brien, 200 N.J. 520, 523 (2009) (holding that the trial judge's questioning of defense witnesses including defendant, which "made it seem as though the judge did not credit the proffered defense," deprived the defendant of a fair trial); State v. Taraffo, 195 N.J. 442, 451 (2008) (reversing defendant's conviction and sentence because the trial judge's questioning of defendant "had the effect of suggesting to the jury that the court doubted defendant's account in a case that rested heavily on defendant's credibility").
Defendant next argues that he was denied a fair trial by James Sinclair's testimony that testifying on behalf of the State exposed him to the risk of reprisal. Sinclair testified for the State regarding the past relationship between defendant and Hoover. He knew Hoover because Sinclair's mother married Hoover's first cousin when Sinclair was very young. Sinclair and defendant grew up in the same neighborhood, and Sinclair coached defendant on a basketball team in 1996. Sinclair said Hoover held a grudge against defendant for stealing money and drugs from Hoover's home. After a hearing pursuant to N.J.R.E. 404(b), Sinclair testified before the jury to the following facts regarding two prior altercations between Hoover and defendant. In February 2006, Hoover was driving down the street in a Lincoln Navigator, saw Sinclair standing outside, and pulled into the building parking lot. After entering the parking lot, Hoover noticed defendant sitting inside a nearby stairwell with two other individuals. Hoover began approaching defendant when defendant pulled a gun out of a black knapsack and pointed it at Hoover, who was approximately six feet away. Defendant told Hoover "if you put your hands on me, I'm going to kill you, you're entirely too big to fight, and I'm not going to keep on going back and forth with you." Hoover backed away from defendant and told him that if he caught him without the gun, he would "f**k him up." Hoover then got in his truck and left.
Approximately one month later, Sinclair was at an apartment building on the corner of Fifth and Kingsley in Asbury Park with defendant. Hoover saw Sinclair, pulled up to the light at the intersection, exited the car and said to Sinclair, "what did I tell you about being with these duck mother f[*][*]ckers." After Hoover said that, defendant reached under his shirt, pulled out a gun, pointed it at Hoover's chest and said "I told you, I'm not playing with you. If you put your hands on me, I'm going to kill you." Hoover then backed away and repeated his statement from the earlier confrontation, saying, "when I catch you without the gun, I'm going to f**k you up."
Pursuant to Rule 2:10-2, defendant challenges as plain error Sinclair's testimony regarding his delay in coming forward with this information. Specifically, defendant challenges the following portion of Sinclair's testimony elicited by the State:
Q. Did you ultimately learn, from whatever source you learned what happened, how Hoover got shot?
Q. You did hear that?
Q. As a result of hearing this information, did you go to the police immediately and tell them what information you had?
A. No, I didn't.
Q. All right. Could you just tell us why?
A. To be perfectly honest with you, up until this morning, up until the time that I came up here and sat on the witness stand, I wrestled with the things that we were taught coming up. Where I come from, you know, I come from, you know, the hood, which is the ghetto, which is the impoverished everywhere. We have certain codes that to me, as a grown man now, is ridiculous, you know.
And one of those codes being, you know, that you're not supposed to tell, it's the wrong thing to do, and only punks tell, and all those things that have caused a lot of people so much pain. Like one of the main reasons that I did come forward was because, you know, I was shot. So, therefore, there was an attempt made on my life, and the difference between me and Hoov is there would have been no one left to tell my story. Like there would have been no one left to put the pieces to the puzzle to help give my family closure, to help give those who love me closure.
So, when I made the decision to testify, I made a decision to testify because I think it's the right thing to do, regardless of the repercussions or the consequences that I may face. Because the reality of it is, you know, I could be in danger for a long time, you know, and it doesn't matter because I feel like in my heart, it's the right thing to do.
Defense counsel did not object to this testimony at trial, but now claims that it lacked factual support and was inadmissible because it "suggested that defendant was a dangerous man who would seek to retaliate against adverse witnesses." Sinclair, however, did not mention that he feared defendant specifically, but rather that he was influenced by the street code of silence.
"In general, a trial court is afforded considerable latitude regarding the admission of evidence, and is to be reversed only if the court abused its discretion." State v. Nelson, 173 N.J. 417, 470 (2002). Here, where there was no objection to the testimony, and where Sinclair did not state, or even intimate, that he was afraid of reprisal from defendant in particular, we are unwilling to accept defendant's argument that the judge had an obligation to sua sponte exclude this testimony. We conclude that only one of the three evidentiary rulings raised by defendant constitutes error. That error is harmless in the context of this case, given the large quantity of evidence produced by the State demonstrating defendant's guilt.
In Point II of his brief, defendant argues that he was deprived of a fair trial because after a N.J.R.E. 404(b) hearing, the trial court erroneously admitted another portion of Sinclair's testimony, which concerned two occasions when defendant threatened to kill Hoover if Hoover put his hands on him. Defendant also objects to Cunningham's testimony recounting a threat defendant made to kill Hoover in Cunningham's presence on a different occasion. No hearing was held regarding Cunningham's testimony, and defendant did not object to this testimony at trial. Defendant asserts that his threats to Hoover in the presence of Cunningham and Sinclair should have been excluded as unnecessary in light of the strength of the testimony of five eyewitnesses.
Pursuant to N.J.R.E. 404(b), evidence of other crimes, wrongs or acts is inadmissible to prove a "defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Covell, 157 N.J. 554, 570 (1999) (citing State v. Stevens, 115 N.J. 289, 293 (1989)). "Despite the fact that the type of evidence excluded by N.J.R.E. 404(b) is often referred to merely as 'other crime' evidence, the Rule's exclusion applies to 'crimes, wrongs or acts,' so that it also excludes evidence of other wrongs and of other acts generally when offered for the proscribed purpose." Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404(b) (2010). "The evidence presented through this rule should not be used to 'suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.'" Covell, supra, 157 N.J. at 570 (quoting State v. Weeks, 107 N.J. 396, 406 (1987)). Evidence of this nature is expressly admissible to prove other facts in issue, such as "'motive, intent, plan, knowledge, identity, or absence of mistake or accident.'" Covell, supra, 157 N.J. at 570 (quoting Stevens, supra, 115 N.J. at 293). Other crime evidence "may be admitted when relevant to some fact in issue not specifically referred to in N.J.R.E. 404(b)." Biunno, Current N.J. Rules of Evidence, comment 15 on N.J.R.E. 404 (2010).
"In order for other-crime and other-conduct evidence to be admissible, the evidence must meet the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992)." Covell, supra, 157 N.J. at 564. Accordingly, to be admissible, evidence of other crimes or acts (1) must be relevant to a material issue; (2) must be similar in kind and reasonably close in time to the offense charged; (3) must be clear and convincing; and (4) must have probative value that is outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338. The fourth prong of this test incorporates the traditional probative value-prejudicial impact analysis required by N.J.R.E. 403. State v. Long, 173 N.J. 138, 162 (2002). It is important to note, however, "that the four Cofield prongs are not equally applied in all cases, and the courts require varying degrees of compliance with each prong depending on the facts of the case as well as the nature of the other conduct evidence and its relationship to the current case." Biunno, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404(b) (2010).
"The admissibility of other-crime [and other-act evidence] is left to the discretion of the trial court." Covell, supra, 157 N.J. at 564. The Supreme Court has held that "[t]he trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard." Ibid. (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)).
The trial court found that Sinclair's testimony regarding the two prior encounters between defendant and Hoover, including defendant's threats toward Hoover, was relevant to a material issue in dispute, thus satisfying the first prong of the Cofield test, reasoning that:
In this case the evidence is highly relevant to the issues of both identity of the perpetrator of the crime and motive. It can be said that motive is always an issue when the defendant asserts his innocence but that is true even more so in the case where the defendant and the victim have a history where the 404B evidence relates to threats by the defendant to kill the victim, where the allegations in the incident involve a fight at a bar and then a shooting thereafter. And where the 404B evidence concerns defendant's actions in pulling a gun, and actions accompanied by words, some of the words were to the effect, I'm not fighting you. And where both incidents take place within about six months of the alleged crime.
As I said, this is highly relevant evidence.
It is critical to the issues of motive and the State's burden to prove the defendant's identity beyond a reasonable doubt.
The trial court then went on to explain that the evidence satisfied the fourth prong of the Cofield test because its probative value was not outweighed by undue prejudice or confusion and stated his intent to give a limiting instruction to the jury.
The court found that the second prong of the Cofield test was satisfied because the incidents were approximately two and one-half months apart, citing State v. Stevens, supra, 115 N.J. at 293, where the Court found that the second prong was satisfied when the two related incidents occurred two and one-half years apart.
The court found that the two prior incidents regarding Hoover and defendant were proven by clear and convincing evidence after hearing Sinclair's testimony. The court found Sinclair credible based on his "demeanor and the consistency of the testimony." The court also found that Sinclair remembered sufficient detail about the two incidents, noting that he knew the "location of the incidents; who was present; that Mr. Hoover arrived by car and left by car. Things like that, in short, he presented a step-by-step version of each event."
We do not agree with the trial court that the prior acts were relevant to show identity, because generally, for other crimes evidence to be admissible to prove identity, "the other crimes must bear peculiar, unique or bizarre similarities." State v. Fortin, 162 N.J. 517, 530 (2000). The prior behavior was, however, admissible to prove motive. "[M]otive is a material issue in dispute where the defendant asserts innocence." State v. Castagna, 400 N.J. Super. 164, 178 (App. Div. 2008). "[G]reater leeway is given when the evidence is proffered on the issue of motive, and there must be a 'very strong' showing of prejudice to exclude evidence of a defendant's motive." Id. at 180. Moreover, we have specifically approved the admission of threats as evidence of motive to commit murder. In State v. Engel, 249 N.J. Super. 336, 372-74 (App. Div. 1991), certif. denied, 130 N.J. 313 (1992), we found that evidence of threats and acts of violence committed by the defendant against his former wife were properly admitted to show his motive for hiring someone to kill her.
Defendant argues that the court allowed Cunningham to testify to defendant's threatening statement without conducting a required N.J.R.E. 104(c) hearing. We note this testimony was not objected to by defense counsel and therefore analyze its admission under the plain error standard. R. 2:10-2. N.J.R.E. 104(c) describes the manner of holding a hearing before admitting an out-of-court statement of a defendant when such a hearing is required by law. Defendant's threat as recounted by Cunningham was not made "in response to police questioning, and there is no genuine issue regarding its contents." State v. Baldwin, 296 N.J. Super. 391, 399, 401 (App. Div.), certif. denied, 149 N.J. 143 (1997) (finding that the trial court's failure to hold a N.J.R.E. 104(c) hearing regarding the defendant's inculpatory out-of-court statements did not constitute plain error where they were "made spontaneously, without coercion by the police or anyone else, [and] under circumstances which provided strong assurances of its probative value"). When the court asked defense counsel if he had an objection to this testimony, counsel responded that he would cross-examine Cunningham. On cross-examination, counsel asked Cunningham if he "heard on a prior occasion that [defendant] had threatened to shoot . . . Hoover if he put his hands on him?" Cunningham responded that he had, and defense counsel then asked him if he "heard that directly from [defendant's] mouth?" Cunningham responded, "Yes." Thus, defense counsel elicited on cross-examination a repetition and elaboration of Cunningham's testimony regarding defendant's threat.
Defendant also argues that the evidence of defendant's prior acts should have been limited to a generalized statement that defendant and Hoover did not get along. "When other bad conduct evidence is admitted, it should be sanitized to the degree possible, so that only so much evidence is admitted as is necessary to prove the point being made and unnecessarily prejudicial material is excluded." Biunno, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404(b) (2010) (internal quotation marks omitted).
Defendant objects to evidence that demonstrated that defendant, while armed with a gun, had threatened three times in the past, twice while armed, to shoot Hoover if Hoover "touched" him. No "unnecessarily prejudicial material" was admitted. The State alleged that after Hoover beat him up, defendant shot and killed Hoover. Thus, the admitted prior acts were directly germane to the charges and in no way unduly prejudicial.
Defendant also argues for the first time on appeal that the prosecutor's repetition of Sinclair's statements during summation was improper.*fn2 He specifically objects to the following portion of the summation:
Because when you think about it, of what actually happened here - and it's not like Sinclair has the discovery and he's reading it and saying, how does it really fit the facts in this case. What happens in this case is that Hoover touches [defendant], and what does [defendant] do? He shoots him.
What did he - - what did Sinclair tell you that [defendant] said he would do if he touched him? You put your hands on me, and I'm going to kill you. Two separate occasions.
The prosecutor was properly commenting on Sinclair's testimony, because "[a] prosecutor may comment on the facts shown by or reasonably to be inferred from the evidence. There is no error so long as he confines himself in that fashion." Wakefield, supra, 190 N.J. at 457 (citation and internal quotation marks omitted).
"Whenever evidence is admitted under N.J.R.E. 404(b), the jury must be instructed . . . as to the limited use of the evidence." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 404(b) (2010). Here, the trial court properly gave the jury a limiting instruction regarding Sinclair's testimony concerning defendant's prior behavior. In light of the limiting instruction and the probative value of all three threats, the admission of this evidence and the State's comments on Sinclair's testimony at trial was proper.
In Point III of his brief, defendant argues that the trial court erred in imposing consecutive sentences on counts one and two charging murder of Hoover and attempted murder of Cunningham.
In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 358 (1987). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a court adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
In State v. Bieniek, 200 N.J. 601 (2010), the Supreme Court reminded appellate judges to avoid substituting their preferences for legally compliant sentencing actions by the Law Division:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence. [Id. at 612.]
When a defendant receives multiple sentences of imprisonment for more than one offense, they may run concurrently or consecutively "as the court determines at the time of sentence." N.J.S.A. 2C:44-5(a). Although N.J.S.A. 2C:44-5(a) does not specify when consecutive or concurrent sentences are appropriate, the Court has provided guidelines. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
The Court has held that when trial courts impose "either concurrent or consecutive sentences, the focus should be on the fairness of the overall sentence, and [the trial courts] should articulate their reasons for their decisions with specific reference to the Yarbough factors." Abdullah, supra, 184 N.J. at 515 (internal quotation marks and citations omitted). The Court further held that "'a statement of reasons is a necessary prerequisite for adequate appellate review of sentencing decisions . . . [in order to] determine whether the trial court's imposition of consecutive sentences was a valid exercise of discretion.'" Ibid. (quoting State v. Miller, 108 N.J. 112, 122 (1987)); see also State v. Miller, 205 N.J. 109, 129 (2011).
In imposing consecutive sentences, the trial court cited Yarbough and explained:
The proofs established at trial that 9 shots were fired at [Hoover] who was in a crowd of people. The court considers the firing of each bullet to be a separate act of violence because each one can either maim or kill.
The court notes Mr. Cunningham was the second victim of defendant's crime and the court believes it would denigrate his suffering, that is that it would minimize the serious injuries he suffered if this court were not to impose a consecutive term. Consecutive sentences are appropriate where there are multiple victims. Carey, supra, 168 N.J. at 429-30. We affirm the forty-five year aggregate sentence in light of the court's reasons and because the sentence does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.
Defendant argues in Point IV of his brief that the trial court erred in imposing restitution payable to the VCCB in the amount of $2000 without inquiring as to defendant's ability to pay. The State agrees with defendant and asserts that a remand for a hearing as to defendant's ability to pay is warranted pursuant to State v. Gallagher, 286 N.J. Super. 1, 23 (App. Div.), certif. denied, 146 N.J. 569 (1996).
N.J.S.A. 2C:44-2 sets forth the criteria for imposing fines and restitutions and provides, in relevant part, (2) In determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay. . . . [N.J.S.A. 2C:44-2(c).]
A trial court must make these findings and state reasons on the record before imposing a fine or restitution. State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.), certif. denied, 183 N.J. 265 (1994). Because the court did not make the requisite findings before imposing restitution, we remand to the trial court to conduct a hearing as to defendant's ability to pay.
Affirmed in part and reversed and remanded in part.