October 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN BURNETT MEMMEL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 07-09-00631.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Payne and Reisner.
In connection with an incident in which he directed a racial slur at an African-American driver, threatened to shoot him, and then persisted in tailgating his car for several miles, defendant John Burnett Memmel was convicted of: second-degree bias intimidation, N.J.S.A. 2C:16-a1(3), threat to kill, N.J.S.A. 2C:12-3b, and unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4e. He received an aggregate sentence of five years in prison.
Defendant contends that the verdict was against the weight of the evidence; the trial court abused its discretion in permitting a witness to testify and in limiting defendant from introducing certain character witness testimony; and the judge should have sentenced him to probation. Finding no merit in any of these contentions, we affirm.
This was the most pertinent trial evidence. On the evening of July 13,
2007, Quran D. Vaughn (Quran or QV), his fiancee Eboni*fn1
Barnes, and their two children were in their mini-van
traveling south on Route 206, a two-lane road. Defendant's pickup
truck emerged from a side street and made a sudden left turn directly
in front of their van. Quran, who was driving, swerved left into the
lane of oncoming traffic to avoid a collision, and defendant's truck
swerved right, onto the shoulder of Route 206. The Vaughn vehicle then
passed defendant's truck and returned to the right-hand lane.
Defendant followed them, and, according to Quran Vaughn, defendant was tailgating as he followed their vehicle. At the intersection of Routes 206 and 518, the van stopped behind several other vehicles waiting for a red light. Defendant moved into the left-turn lane, but although there were no cars in front of his vehicle, he did not proceed up to the light. Instead, his truck "slowly approached" the left side of the van, with the windows down. When the truck pulled even with the van, defendant pointed "a big, black gun" out the window, aimed at Quran's head. As defendant pointed the gun he asked "Do you want to get shot, nigger?"
According to Eboni, at that point, she believed that Quran was in danger of "hav[ing] his brains blown out right before my eyes" and everyone in the van was "terrified." The couple's six-year-old son asked his mother if the man was going to shoot them. Quran testified that he believed he was about to be shot and possibly killed. Quran, who is African-American, also testified that the use of the racial slur, together with the gun being pointed at him, caused him to feel "intimidated."*fn2 He believed that defendant targeted him for this abuse because of his race.
Trying to get away from defendant, Quran pulled the van into an abandoned gas station at the corner of Routes 518 and 206, and then turned back onto Route 206, believing that defendant would by then have made the left turn onto Route 518. However, defendant instead swerved back into the right lane of Route 206 and began following the van down Route 206 toward Princeton. According to Quran, defendant's pickup truck "was definitely on my heels and I was scared." When they finally reached Princeton, with defendant's truck still following, Quran turned the van into the parking lot of the Princeton Borough police station and shouted to a police officer that defendant had a gun in his truck. The officer apprehended defendant, whose vehicle was stopped at a red light near the police station.
In defendant's car, the police found an imitation gun, painted black to look like a real weapon. The State also presented testimony from Cathy Moldenhauer, a State trooper who, while off-duty, had observed defendant's vehicle driving erratically on Route 206 and called 9-1-1 to report it.
The defense presented testimony from defendant's wife and from the arresting police officer, designed to show that defendant may have been under the influence of painkillers at the time of the incident. The arresting police officer testified that, when arrested, defendant evinced slow, rambling and slurred speech but was polite and cooperative.
Defendant did not testify, and the defense did not contest that he directed the racial slur and the threat to Quran Vaughn. Nor did the defense contest that defendant possessed an imitation gun. Instead, the defense theory was that this was a "road rage" incident rather than a racially motivated attack. In his closing, counsel argued that defendant was a fair-minded and peaceful person who became temporarily enraged and chose inappropriate words to express his anger.
The jury acquitted defendant of committing a terroristic threat against QV in a purposeful or knowing manner because of his race or color. However, they convicted him of committing a terroristic threat against QV "under circumstances causing [him] to be intimidated and QV[,] considering the manner in which the acts were committed[,] to reasonably believe that the defendant acted with purpose to intimidate QV because of his race or color." See N.J.S.A. 2C:16-1a(3).
On this appeal, defendant presents the following points of argument for our consideration:
POINT I: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
A. Terroristic Threats
B. Bias Intimidation
POINT II: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING [I.B.V.] TO TESTIFY AS A LAST-MINUTE WITNESS.
POINT III: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPROPERLY LIMITING DEFENDANT'S CHARACTER WITNESS TESTIMONY.
POINT IV: THE COURT BELOW SHOULD HAVE FOUND ALL MITIGATING FACTORS, SENTENCED DEFENDANT ONE DEGREE LOWER AND SENTENCED DEFENDANT TO PROBATION.
For the reasons that follow, we conclude that these arguments are all without merit.
Defendant contends that the verdict was against the weight of the evidence. We cannot agree.
In relevant part, bias intimidation is defined as committing an offense, including terrorist threats, "under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed . . . that (a) the offense was committed with a purpose to intimidate the victim . . . because of race [or] color." N.J.S.A. 2C:16-1a(3). Committing terroristic threats consists, in pertinent part, in "threaten[ing] to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." N.J.S.A. 2C:12-3b.
The State's proofs, which were essentially undisputed by any evidence from the defense, overwhelmingly supported the verdict. Defendant pointed a gun at the African-American victim, while calling him a racial slur and threatening to shoot him. When the victim tried to avoid defendant by turning his van off the road into an abandoned garage, defendant waited for him and when the victim turned back onto Route 206, defendant tailgated the victim's car for several miles. As a result, the victim was put in imminent fear of death and reasonably concluded that defendant, who obviously knew he was African-American and had called him by a racial slur, was putting him through this ordeal because of his race.
We next address defendant's challenges to the trial judge's evidentiary rulings. We review those decisions for abuse of discretion, and we find none. See State v. Ramseur, 106 N.J. 123, 266 (1987).
Defendant first claims that the victim's son, I.B.V., should not have been allowed to testify. This is the background. At a pre-trial N.J.R.E. 104 hearing on March 24, 2010, the children's mother testified that during the incident, she saw that defendant was pointing a gun at her fiance, and she said "oh, shit, he has a gun." Then their six-year-old son asked, "are we going to get shot?" The child was "highly excited" and "frantic" at the time. According to the mother, the children (ages six and three) were in a position to see the gun from the window of the van. The judge granted defendant's motion to preclude the mother from testifying about the child's statement, in lieu of the child's in-person testimony. The judge reasoned that it was not clear that the child saw the gun, as opposed to hearing the mother's statement that defendant had a gun.
After the judge made his ruling, the State applied to amend its witness list to include the child as a trial witness. The defense objected that the application was untimely, coming two days before the trial was to commence. The judge granted the motion, subject to a N.J.R.E. 104 hearing at which the child would testify. The judge rejected the defense claim of unfair surprise:
[T]he defendant certainly throughout, had notice that this child was present and was a potential witness and certainly could have been interviewed along with the other witnesses. There's no surprise here in terms of providing someone who was never noticed anywhere prior. Also, the fact that the defendant knew that there was a possibility that the mother's statement could come in . . . [a]nd the 104 hearing would certainly afford him an opportunity to deal with that issue as well.
On March 30, 2010, the judge heard testimony from the child at a N.J.R.E. 104 hearing, and determined that he was competent to testify. At this hearing, the child did not testify as to what he observed during the incident because the judge concluded that was not the appropriate purpose of the hearing. However, at defense counsel's insistence, the judge required the prosecutor to state on the record what the child had said when the prosecutor interviewed him. The judge also placed on the record the fact that he had given defense counsel an opportunity to interview the child. When called as a trial witness, the child gave testimony consistent with his mother's recollections at the first N.J.R.E. 104 hearing.
On this record, we find no abuse of the judge's discretion in allowing the child to testify. The defense had ample advance notice of the testimony to be offered by this witness. Defendant's arguments on this point warrant no further discussion. R. 2:11-3(e)(2).
We likewise find no merit in defendant's argument concerning the introduction of character testimony. At the pre-trial N.J.R.E. 104 hearing, the State moved to bar defendant from presenting character evidence through specific incidents. The prosecutor represented that the State would not be putting on any evidence "about bad character or bias or prejudice." The judge ruled that defendant could present evidence of good character or reputation, and that he would handle any objections from the State when and if those objections were raised at the trial. In his opening statement, the prosecutor told the jury that the accusations of bias crime against defendant were "ugly" but that "we'll try to focus on the specific circumstances of this case." In other words, the State in no way implied that defendant was racist in character.
During the trial, the defense presented testimony from defendant's wife, who had worked with him in a corporate human resources department. She stated that in making hiring decisions, defendant always complied with the company's policy and hired the most qualified candidates. One of defendant's close friends was also called as a witness. At a N.J.R.E. 104 hearing held immediately prior to this witness's testimony, the judge ruled that defense counsel could not ask the witness about "any specific incidents of conduct" including the use of racial epithets or the lack thereof. However, in the jury's presence, the witness was permitted to testify more generally that he was familiar with defendant's character, and that defendant was peaceful, compassionate, fair, kind, not aggressive, inspirational and a positive person. Several additional friends testified that defendant was religious and that he was fair in character, in his personal as well as his professional dealings. Defendant's brother also testified that defendant was a "non-aggressive" person.
We conclude that the trial judge correctly ruled that character could not be proven by specific incidents. See State v. Mahoney, 188 N.J. 359, 373, cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006); State v. Reyes, 50 N.J. 454, 468 (1967). Further, the jury heard multiple witnesses testify about defendant's reputation for fairness in his character and conduct. That was sufficient, but even if it were not, on this record, any error in precluding more specific character testimony would have been harmless. State v. Macon, 57 N.J. 325, 336 (1971).
Finally, we find no abuse of discretion or other error in defendant's sentence. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 363-64 (1984). The trial judge properly and sensitively weighed the mitigating and aggravating factors, found that the mitigating factors preponderated, and sentenced defendant at the bottom of the range for a second-degree offense. N.J.S.A. 2C:43-6a(2). The court was not required to sentence defendant as a third-degree offender or to sentence him to probation. The interests of justice did not demand that degree of leniency. See N.J.S.A. 2C:44-1f(2). This was not a victimless crime; defendant committed an appalling act and inflicted a terrifying experience on QV, his fiancee, and their young children. We affirm substantially for the reasons set forth by the trial judge in his comprehensive oral opinion on June 11, 2010, and his written statement of reasons set forth in the judgment of conviction.