August 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HENRY S. BULLOCK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-12-1458.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2011
Before Judges A.A. Rodriguez, Grall and LeWinn.
Defendant was indicted, along with co-defendant Antwan Mitchell, for purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1) - (2); felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1(a)(1); carjacking, N.J.S.A. 2C:15-2; unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and possession of a handgun with unlawful purpose, N.J.S.A. 2C:39-4(a). Mitchell's charges were severed and defendant was tried alone. A jury convicted defendant of all charges. He was sentenced to an aggregate term of life imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant was also required to pay $7761.41 in restitution.*fn1
The trial testimony may be summarized as follows. The victim of the carjacking, armed robbery and homicide was Christopher Cooper. He was a highly successful drug dealer and Mitchell, also known by the nickname "Rell," was one of his customers. In 2001, a friendship began to develop between Cooper and Rell. According to Kimberly Harris, Cooper's fianceee, Rell was aware that Cooper kept as much as $65,000 in cash in his apartment.
During the afternoon of March 26, 2002, after they had worked out at a gym together, Rell and Cooper were driving in a gray Ford Taurus. They picked up defendant and shortly thereafter stopped at an Exxon gas station in Clark. The station attendant, Joga Singh, saw a man in the front passenger seat with his legs hanging out of the car, "trying to shout." The driver, whom Singh described as a young African-American male, was "trying to push . . . [the passenger] back inside the vehicle." The car then left the gas station at a high rate of speed, heading towards a near-by Shop-Rite; the passenger's legs were still hanging outside the door on his side.
A customer at the Exxon during this incident, Susan Schwartz, described a similar scene, adding that the car's windows were tinted. She heard the passenger yell, "[c]all the police, they're going to kill me." She called 9-1-1 and gave the dispatch operator the license plate number of the Ford Taurus.
Another individual, Stuart Reiter, was driving in the area of the Exxon at this time. He noticed what he described as a light blue Ford Taurus run a red light on Valley Road near the entrance to the Garden State Parkway. Just before entering the ramp to the Parkway, a large-framed, tall man wearing a hooded sweatshirt threw a flip cell phone from the car. Reiter did not see the man's face. He reported this information to the Clark Police Department two days later after hearing a news report asking for assistance in a murder investigation. The police retrieved the phone and subsequently determined that it was registered to Rassoull Abdullah.*fn2
Clark Police Officer Pasquale Delvecchio was dispatched to the Shop-Rite in response to Schwartz's 9-1-1 call. He found an individual, later identified as Cooper, lying in a "prone position" behind the supermarket. Delvecchio observed a gunshot wound in the back of Cooper's head and detected no pulse. Cooper's boots were scuffed at the toes. He wore no jewelry and had no money on his person.*fn3 No shells or spent cartridges were found by his body.
A forensic pathologist testified that Cooper received three gunshot wounds to his head and one to his right shoulder; the three head shots likely occurred within quick succession of each other and Cooper's shirt was over his head when he was shot.
The day after the incident, Officer George Gyure of the Union County Sheriff's Office located the Ford Taurus at a bank in Union. Title to the vehicle was in Harris' name. Sheriff's Officer Nicholas Cadigan, "processed" the vehicle, taking external and internal photographs and collecting evidence. He retrieved numerous items from the Taurus, including a cell phone charger, clear plastic wrap and containers of baby wipes and "All Armor" wipes.*fn4
The cell phone retrieved by the police based on the information provided by Reiter revealed that on the day of Cooper's murder several calls had been made between that phone and one registered to Quinton Lowe. The police thereupon questioned Lowe, who explained that he maintained that phone for defendant's use. Because he wanted to "clear [his] name," Lowe agreed to cooperate with the police and allow them to listen in on a conversation with defendant.
Lowe called defendant from police headquarters on his cell phone. He told defendant that he was being questioned by the police about a murder in Clark. Defendant responded that he did not want to discuss the matter over the phone; therefore, Lowe agreed to meet him in person. Lowe wore a body wire during that meeting and a detective from the prosecutor's office monitored the conversation from a remote vehicle.
A tape of Lowe's conversation with defendant was played for the jurors who also received a transcript to follow along. As the tape played, Lowe was asked to explain various terms and expressions defendant used.
In that conversation, Lowe stated that the police had identified defendant on a surveillance tape. Defendant, however, told Lowe he was not on tape because he "was in the car the whole time and had gloves on. [He] had a mask on. The windows w[ere] tinted" and no one saw him get out of the car. Lowe claimed his cell phone arrangement with defendant had implicated him in the murder. Defendant advised Lowe to tell the police that the phone belonged to a dead person.
When Lowe asked defendant about the gun used in the murder, defendant said it was "history," and explained that he had picked up the spent shells "with the glove. Everything [he] touched with a glove." Defendant stated he did not do anything that would put him "in the midst" of things. He added that the shell casings were disposed of in a sewer and the car was wiped down with baby wipes.
Lowe suggested that Rell might have implicated defendant in Cooper's murder. Defendant responded:
Word is bond this nigga, he a official, I'm telling you if not I'd have burned this nigga right after that shit went down. Word is bond this nigga, and I made the nigga put some other work in the other day that can link him. So if you trying to put me away for one nigga, I got you.
Lowe explained that "official" meant that Rell would not cooperate with the police, and "work" meant that defendant had compelled Rell to commit another crime so that he would not then cooperate with the police investigation of Cooper's murder.
Defendant was arrested about two months after the murder. After being advised of his Miranda*fn5 rights, he gave a statement, which was admitted into evidence at trial. Defendant told the police:
When R[ell] came and picked me up that morning, they [Rell and Cooper] were coming from a gym from working out. He called me on my phone and told me to come downstairs. I get downstairs, I open up the car door and get into the car with him, in the back seat.
[Rell] had a pair of gloves in the back seat and told me to put them on. Mufee*fn6 was already shot in the arm . . . . [H]e was shot prior to me getting in the car. We were leaving Newark, getting on the parkway going south. We got off at exit [sic] and pulled up to the . . . gas station, in . . . Clark. R[ell] told me to hold Mufee's shirt so he couldn't run out of the car. Somehow Mufee got the door open and tried to jump out. R[ell] grabbed his legs and pushed him back into the car. As I was holding him R[ell] was pu[ll]ing off, his legs were still out of the car. Coming out of the . . . [g]as [s]tation we made a quick right, we were in the back of the Shop-Rite. R[ell] told me [to] release Mufee's shirt and he shot him in the back of the head. We left straight out the [sic] back of Shop-Rite, we got to the parkway going north, we got off at the town we left the car at, I don't know the name. We got out of the car, R[ell] told me to go over to the store and get some baby wipes, to wipe the car down. Told me to make sure I pick up all the shell cases. I picked them up, pulled my gloves off. He had the gun, I had the shells to throw away when we got closer to Newark.
I witnessed [three] shots behind Shop-Rite but he was also shot in the shoulder before they picked me up.
After [Rell] shot [Mufee], the shell casings were on the front seat of the car, they started to roll out of the car and I picked up the shell casings from the front seat.
I threw them away . . . down the sewer . . . .
R[ell] disposed of the gun.
When asked about Rell's motive for shooting Cooper, defendant stated that Rell "owed Mufee money for a drug transaction. R[ell] said he was tired of giving Mufee his money. Mufee told R[ell] that he had $65,000 in his house. And he wanted Mufee to take him there so he can take it."
Defendant stated that he knew when Rell came to pick him up that he intended to rob Cooper and defendant agreed to help with the robbery. He did not know that Rell intended to shoot Cooper.
Defendant elected not to testify when, following a Sands*fn7
hearing, the judge ruled his 1991 convictions for robbery, unlawful possession of a weapon and possession of a weapon for an unlawful purpose would be admissible as bearing on his credibility. He called no witnesses on his behalf.
On appeal, defendant raises the following contentions for our consideration:
DEFENDANT'S SUPPOSED ASSERTION TO QUINTON LOWE THAT HE HAD INDUCED THE PERSON WITH HIM WHEN THE HOMICIDE WAS COMMITTED TO COMMIT A SUBSEQUENT CRIME IN ORDER TO PRECLUDE THAT PERSON FROM COOPERATING WITH THE POLICE WAS INADMISSIBLE OTHER-CRIMES EVIDENCE
THE COURT ERRONEOUSLY PERMITTED QUINTON LOWE TO PROVIDE HIS INTERPRETATION OF DEFENDANT'S CRYPTIC STREET SLANG IN THE RECORDED CONVERSATION BETWEEN DEFENDANT AND LOWE
THE COURT'S JURY INSTRUCTIONS SUFFERED FROM MULTIPLE DEFICIENCIES
THE COURT ERRONEOUSLY PERMITTED THE STATE TO INTRODUCE EVIDENCE OF DEFENDANT'S PRIOR CRIMINAL CONVICTIONS
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
Having reviewed these contentions in light of the record and the controlling legal principles, we discern no error warranting reversal of defendant's convictions or modification of his sentence.
Over defendant's objection the jury was permitted to hear a portion of Lowe's taped conversation in which defendant told Lowe that he made Rell "put some work in the other day that can link him." The State contended that portion was admissible because "when somebody makes somebody else commit another crime to cover their tracks in a previously committed crime, . . . that does go to show consciousness of guilt . . . ."
The judge redacted defendant's references in the conversation to specific "killings in Irvington." The judge then ruled that the quoted portion was admissible under N.J.R.E. 404(b), finding that it went to defendant's consciousness of guilt. At the conclusion of Lowe's testimony, the judge instructed the jury as follows:
You have heard evidence that [defendant] may have been involved in a crime. You may recall the words on the audiotape that he has said, "put some other work in the other day," and . . . Lowe referred to that as crime. . . .
Normally such evidence is not permitted under our Rules of Evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it is offered only to show that he has a disposition or a tendency to do wrong and, therefore, must be guilty of the . . . offenses charged.
Now, before you give any weight to this evidence you must be satisfied that . . . defendant committed the other crime. If you are not so satisfied, you may not consider it for any purpose. However, our rules do permit evidence of other crimes, wrongs or acts when the evidence is used for a specific narrow purpose.
Now, in this case [defendant] allegedly directed another crime so that the person . . . would not cooperate with the police with this investigation. . . . [W]hether the evidence does, in fact, demonstrate . . . defendant's consciousness and awareness of his guilt for [the] crimes charged is for you to decide.
You may decide that the evidence does not demonstrate . . . defendant's consciousness and awareness of his guilt for the crimes . . . charged and is not helpful to you at all. In that case you must disregard the evidence.
On the other hand, you may decide that the evidence does demonstrate that this goes to . . . defendant's consciousness . . . of guilt for the crimes . . . charged and use it for that specific purpose only.
However, you may not use this evidence to decide that . . . defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because . . . defendant has committed other crimes, wrongs or acts, he must be guilty of the present crime.
The judge reiterated this instruction in his final charge to the jury.
N.J.R.E. 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The Supreme Court set forth "a rule of general application" for N.J.R.E. 404(b) in State v. Cofield, 127 N.J. 328 (1992):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Id. at 338 (citation omitted).]
Defendant contends that the first prong of the Cofield test is not met because he conceded his agreement to participate with Mitchell in robbing Cooper. We disagree. That prong is satisfied because the evidence disclosed in his conversation with Lowe was relevant as to whether defendant participated in the murder of Cooper, which was a disputed material fact. Defendant's comments to Lowe make it clear that he induced Mitchell to commit subsequent crimes to prevent him from implicating defendant in Cooper's murder. When Lowe himself expressed concern about being implicated because of his phone calls to defendant on the day of the murder, defendant reassured him by explaining that inducing Mitchell to commit subsequent crimes to shield defendant would also protect Lowe.
"[P]ost-crime consciousness of guilt evidence can support a logical connection to a desired inference about mental state in specific . . . intent crimes." State v. Williams, 190 N.J. 114, 128 (2007). Where, as here, N.J.R.E. 404(b) evidence is admitted in connection with consciousness of guilt, the second Cofield prong is not applicable. Williams, supra, 190 N.J. at 131.
As to the third Cofield prong, whether the "evidence of the other crime . . . [is] clear and convincing[,]" supra, 127 N.J., at 338, defendant admitted in his conversation with Lowe that he induced Mitchell to commit subsequent crimes. "The clear and convincing standard may be satisfied by uncorroborated testimonial evidence." In re Samay, 166 N.J. 25, 30 (2001).
With respect to the fourth prong, we are satisfied the probative value of this evidence was not outweighed by its potential prejudice. Defendant's specific comments regarding murders in Irvington were redacted; thus, the jury was informed only that he induced Mitchell to commit other crimes, not specifically murders. Moreover, the judge immediately gave the jury a limiting instruction and then repeated that instruction in his final charge, thereby ensuring that the jury would not consider the evidence for any purpose proscribed by N.J.R.E. 404(b). As in State v. Lassiter, 197 N.J. Super. 2, 8 (App. Div. 1984), certif. denied, 101 N.J. 215 (1985), we conclude that
[t]he purpose of the testimony was to demonstrate defendant's determination to deprive the court of highly incriminating evidence. As such, it was clearly admissible as illuminating defendant's consciousness of his own guilt and on the theory that any conduct of the defendant inconsistent with his claim of innocence is admissible in evidence.
In sum, we are satisfied the judge properly ruled this evidence admissible under N.J.R.E. 404(b) as bearing upon defendant's consciousness of guilt.
We disagree with defendant's second contention regarding Lowe's explanation to the jury of certain slang terms defendant used in his conversation. The State was not required either to qualify Lowe as an expert or to proffer a foundation for his testimony, as defendant contends.
Lowe testified that his understanding of the terms at issue came from "the street." He has known defendant for about twenty years and described himself as defendant's friend. As noted, it was Lowe who had provided defendant with a cell phone when he needed one. There was no doubt from the transcript of his conversation with defendant that Lowe understood everything defendant was saying.
Under the circumstances, Lowe's testimony was properly admitted as "an opinion on matters of common knowledge and observation[,]" State v. Johnson, 120 N.J. 263, 294 (1990), derived from his experience. A lay witness' "testimony in the form of opinions or inferences may be admitted if it . . . is rationally based on the perception of the witness and . . . will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701.
In State v. Johnson, 309 N.J. Super. 237 (App. Div.), certif. denied, 156 N.J. 387 (1998), we upheld the admissibility of a lay witness' testimony explaining certain slang used by the defendant in trying to induce the witness to commit a crime with him. Id. at 262-63. The witness testified that he had heard the slang in question both "on the streets . . . and by other inmates when was he in jail . . . ." Id. at 263. We determined that the trial judge correctly found the witness' knowledge of the slang was based on his personal experience. Ibid. "Moreover, since . . . [the] slang term [was] unfamiliar to the average juror, [the witness'] lay opinion testimony was of assistance in determining the meaning and context of his conversation with defendant and was obviously relevant to the issue of defendant's motive and intention." Ibid. We are satisfied that Lowe's testimony is similar in nature to that of the witness in Johnson.
Defendant contends that "the soundness of Johnson's ruling" is "'vulnerable[,]'" citing Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 701 (2011), for the proposition that it "allow[s] the admission of lay opinion not, in fact, properly based on the 'perception' of the witness, which invades the province of the jury to determine the common sense meaning of defendant's use of the phrase, and/or which usurps the proper function of an expert witness." Ibid. The Supreme Court, however, recently recognized the continuing viability of
"Johnson's ruling" in State v. McLean, 205 N.J. 438, 458 (2011). There, the Court reaffirmed the basic standard governing the admissibility of lay opinion testimony pursuant to N.J.R.E. 701, namely that such testimony "can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its function." Id. at 456. The Court recognized that "Johnson's ruling" met that standard. Ibid.
We note, moreover, that the judge properly charged the jury to consider Lowe's testimony and "give it the weight to which you deem it is entitled, whether that weight be great or slight, or you may reject it." In sum, we are satisfied the judge properly admitted this testimony and guided the jury on how to consider it.
Defendant next contends the judge erred in instructing the jury on his theory of the case. We consider this issue of insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
When instructing the jury on the elements of the offenses charged, and later in response to the jury's request for re-instruction on some of those charges, the judge stated: "The defendant . . . asserts that [he] did not know that Mitchell had the gun, [defendant] did not know that Mitchell intended to use the gun and that [defendant] played no role in any of the crimes and was merely present." Defendant now contends this language "ascribed a theory to [him] which did not precisely state his position and which precluded the jury from finding guilt on the robbery charge while at the same time acquitting him of any felony homicide charge." We disagree.
In his opening, defense counsel told the jury:
[Defendant] absolutely, positively and unequivocally denies his guilt in this case on all charges. He denies his guilt with regard to the murder, . . . felony murder, . . . carjacking, possession of a weapon, possession of a weapon for unlawful purpose and robbery. [Emphasis added.]
Counsel reiterated that statement in his closing, adding: "[N]ot only has the State failed in reaching its burden beyond a reasonable doubt, I suggest to you the evidence, and I will show you how it is clear, that he did not do it." A bit later, counsel stated:
I suggest to you [that] the reasonable . . . construction of what happened is that . . . Mitchell was getting greedy, . . . Mitchell leaned across that seat and shot [Cooper] when he tried to get out. . . . Mitchell had that gun. . . . Mitchell had the motive, means, opportunity. He had the friendship. He knew the habits. He had the most to lose. Not [defendant]. He is a stranger.
Thus, the theory of the case that defendant presented to the jury was entirely consistent with the judge's characterization of that theory in his jury instructions.
Defendant did not raise this objection to the charge below. It is, therefore, raised here as plain error. R. 2:10-2. "We must . . . consider the charge in light of the arguments made by trial counsel . . . ." State v. Robinson, 165 N.J. 32, 47 (2000). Having done so, we will "not reverse under the plain-error standard because the charge . . . was not clearly capable of producing an unjust result." Ibid.
We likewise consider defendant's Sands argument to lack sufficient merit to warrant discussion here. R. 2:11-3(e)(2). Defendant was convicted of robbery and unlawful possession of a weapon in 1991 and was sentenced to eighteen years in prison with a six-year parole disqualifier. He was released on parole in 1997, but was reincarcerated in 1999 for a parole violation. He was then released in January 2002, only two months before the commission of the present offenses. Thus, while defendant's convictions may have been remote in time, that remoteness did not indicate a law-abiding life in the interim.
The decision whether to admit a witness' prior criminal convictions for the purposes of impeachment "rests within the sound discretion of the trial judge." State v. Sands, 76 N.J. 127, 144 (1978). In considering the "remoteness" of a prior conviction, the judge shall "giv[e] due consideration to relevant circumstances such as . . . intervening incarcerations and convictions . . . ." Id. at 147. We are satisfied the trial judge did not abuse his discretion in ruling that defendant's prior convictions would be admissible to affect his credibility if he chose to testify.
Finally, we turn to defendant's contention that his sentence is excessive because the judge improperly weighed aggravating and mitigating factors and failed to consider "the real-time consequences of NERA." Our review of the sentencing transcript satisfies us that neither assertion has merit.
The judge determined that aggravating factors one, three, six and nine applied, N.J.S.A. 2C:44-1(a)(1), (3), (6) and (9), and no mitigating factors applied. We discern no abuse of the judge's discretion based on his findings in support of this determination, namely that: "[t]his was a cold calculated crime . . . unusually callous and . . . cold behavior"; the risk that defendant will commit another offense "is clearly evident"; defendant "has a significant criminal record"; and "obviously there's need to deter others from committing the crime of murder." The record clearly supports these findings.
The judge considered the impact of NERA upon the life sentence he imposed. The judge stated: "This is a decision, and I've given a lot of thought to this, since he's [thirty-six] years old now." The judge concluded that "this crime, and . . . defendant's prior criminal behavior, which shows him being out of jail only for brief periods of time before a violent crime occurs, leaves the [c]court no other choice but to sentence . . . defendant to life in prison."
Having reached that conclusion, the judge had no discretion with respect to the parole ineligibility period. NERA mandates the imposition of a "minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole[,]" on sentences for murder, robbery and carjacking. N.J.S.A. 2C:43-7.2(a), (d); see also State v. Kearns, 393 N.J. Super. 107, 113 (App. Div. 2007) (holding that the "[i]mposition of NERA is mandatory").
"[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). "In the end, '[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). When a trial judge has "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]," we may not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted).