October 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IVAN W. CORNELIUS, A/K/A IVIN W. CORNELIOUS, A/K/A IVAN W. CORNELIOUS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment Nos. 09-06-0365 and 09-06-0366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges Sabatino and Fasciale.
Following a consolidated jury trial on two indictments, defendant Ivan Cornelius was found guilty in Indictment No. 09-06-365 of a second-degree "certain persons" weapons offense, N.J.S.A. 2C:39-7; and guilty in Indictment No. 09-06-0366 of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and the disorderly persons offense of harassment, N.J.S.A. 2C:33-4. The trial court sentenced defendant to a custodial term of eight years with a five-year parole disqualifier in Indictment No. 09-06-0365. The court further imposed a concurrent extended term of fifteen years on the weapons conviction in Indictment No. 09-06-0366, and a concurrent nine months on the harassment offense.
Defendant now appeals, raising various substantive arguments with respect to his three convictions. He also argues that the sentences imposed by the trial court were manifestly excessive. For the reasons that follow, we affirm defendant's convictions and the sentences that he received.
The State's proofs at trial presented the following chronology of relevant events.
On the day of the charged offenses, April 17, 2009, defendant was angry because he was unable to gain access to a garden apartment in Penns Grove that he had shared with his former girlfriend. He wanted her to let him into the apartment so that he could retrieve his belongings, but she apparently had not done so.
Between approximately 9:30 and 10:00 that evening, defendant knocked on the front door of his ex-girlfriend's sister's apartment. She resided in another unit in the same apartment complex as defendant's ex-girlfriend. Her mother, who was visiting, opened the door of the residence. Defendant confronted the mother, and demanded that she tell his ex-girlfriend to meet him at the other apartment immediately. He then walked away, apparently still in an agitated state.
About thirty minutes later, defendant returned to the sister's apartment. This time, the sister's husband answered the door. Defendant again demanded that his ex-girlfriend be contacted. After it became apparent that his demands would not be obeyed, defendant again departed.
Having been thwarted twice, defendant returned to the sister's apartment around midnight, brandishing what some witnesses described as a silver gun. Defendant encountered the sister, held the gun to the sister's head, and threatened to kill her and her children. He then left the apartment and walked around the corner, where he fired four gun shots into the air. Although the shots were heard by several witnesses, the gun and bullets were not recovered.
The police were notified after the shots were fired. They located defendant a few hours later inside the residence of his friend, Dereka Lewis, who also lived in the same apartment complex.
Defendant did not testify at trial, but his counsel elicited brief testimony from Lewis and his former girlfriend.
The jury found defendant guilty of the three offenses we have previously identified, the most serious of which was the second-degree possession of a handgun for an unlawful purpose. At the ensuing sentencing, the State moved for an extended term, in light of defendant's extensive prior record, which the court granted.
The present appeal followed.
In his briefs on appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR JUDGMENT OF ACQUITTAL
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED (NOT RAISED BELOW)
IT WAS ERROR TO ALLOW DEREKA LEWIS' TESTIMONY BECAUSE IT WAS OBTAINED THROUGH A VIOLATION OF HER 4TH AMENDMENT RIGHTS AND, THEREFORE, SHOULD HAVE BEEN SUPPRESSED (NOT RAISED BELOW)
A THE FOURTH AMENDMENT RIGHTS OF DEREKA
LEWIS WERE VIOLATED IN THAT THE POLICE THREATENED HER IN ORDER TO OBTAIN HER CONSENT TO SEARCH HER APARTMENT B COUNSEL'S FAILURE TO MOVE TO SUPPRESS THE EVIDENCE OF WHERE THE POLICE FOUND THE DEFENDANT RESULTED IN INEFFECTIVE ASSISTANCE C THE COURT ERRED BY NOT ALLOWING COUNSEL TO ELICIT TESTIMONY REGARDING THE CIRCUMSTANCES UNDER WHICH DEREKA LEWIS CONSENTED TO THE SEARCH OF HER APARTMENT
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED
We have fully considered these points, and find none of them persuasive.
Defendant first argues that the trial court erred in not granting his motion under Rule 3:18-1 at the end of the State's case for a judgment of acquittal as to all*fn1 of the charged offenses. We discern no such error.
It is well settled that when a court assesses such a motion, "the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 81 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)). The State's evidence should be viewed in its entirety and given "'the benefit of all [of] its favorable testimony and all of the favorable inferences' to be drawn from that testimony[.]" State v. Spivey, 179 N.J. 229, 236 (2004) (quoting State v. Moffa, 42 N.J. 258, 263 (1964)); see also State v. Reyes, 50 N.J. 454, 458-59 (1967). "[T]he court 'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." Spivey, supra, 179 N.J. at 236. On appeal, we apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996).
In his bench ruling on defendant's motion, the trial judge acknowledged that there were differences in the testimony of the sister and the eyewitnesses regarding the details of defendant's conduct. For example, the judge was mindful that the witness's testimony diverged about whether the operative events had occurred inside or outside of the sister's residence, or in both places. The judge also recognized that the testimony varied as to whether defendant went to the residence multiple times. The judge further noted that the testimony differed regarding whether defendant had threatened the sister "at a time when he was actually pointing the gun or had a gun visible."
Even so, appropriately giving the State the benefit of all reasonable inferences from the testimony, the judge found the proofs ample to support a finding that defendant "threatened to kill both [the sister] and her children." The judge also found a reasonable evidential basis to conclude that defendant had pointed a gun at the sister with extreme indifference to the value of human life. Moreover, the judge noted that, as the parties had stipulated, defendant lacked a gun permit. The judge found what he characterized as "ample proofs," that defendant had unlawfully possessed a gun during his confrontation with the sister.
Defendant argues that the judge was obligated to grant his motion under Rule 3:18-1, because of the variations in the testimony of the State's witnesses. He contends that his principal accusers were biased, asserting that "[o]nly witnesses who would appear to have had a connection or relation to [the sister] testified that there was an argument and that they heard shots." He also emphasizes that the police never recovered a gun or bullets.
Nevertheless, under the applicable standards, the trial judge rightly allowed the jury to weigh these proofs and the credibility of the various witnesses. We note that the testimony of the sister, her husband, the mother, and another eyewitness named Smith, was sufficiently consistent to support a guilty verdict. Affording the State all favorable inferences, a "'rational trier of fact could have found the essential elements of the [charged] crime[s] beyond a reasonable doubt.'" Josephs, supra, 174 N.J. at 81 (quoting Jackson, supra, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573). The issues of potential bias go to the assessment of the witnesses' credibility, which is the ultimate function of the fact-finders. State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). Moreover, it was not essential for the State to have produced the gun or any bullets, as it could prove its case based upon the strength of the eyewitness testimony. We thus affirm the court's denial of the Rule 3:18-1 motion as to the counts that were ultimately submitted to the jury.
Defendant argues that he was deprived of a fair trial because of three statements made by the prosecutor in closing arguments, none of which were objected to by his trial counsel.
First, defendant contends that the prosecutor should not have suggested to the jurors that a witness's recollection of the timing of certain past events can diminish:
And one of the things that I'm going to return to is not leaving your common sense behind. And certainly, one of the concepts is, recollection of time certainly changes dramatically when you're in an event like this.
Second, defendant asserts that it was improper for the prosecutor to suggest to the jurors that when a gun is fired in the air, it is uncertain where the bullets will land:
The officers testified that they looked for a gun, that they looked for physical evidence, that they didn't find any. I think it's fair to say that if you point a gun in the air, God knows where the bullets [are] going to come down.
It won't be at your feet. It could be over there. It could be over there. But you heard that the officers didn't find any physical test--evidence.
Third, defendant complains about a portion of the prosecutor's summation in which he stated - without likewise referring to defendant's own expectations of the jurors - that:
[T]he State is depending on you to take the information that came from each witness, to get the facts. To assess the credibility [of each witness] and to apply the law.
We are satisfied that none of these closing remarks, either singularly or in combination, could have so tainted the jurors as to deprive defendant of a fair trial.
To determine whether a prosecutor's improper comments in summation warrant reversal, we must assess whether the impropriety "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). Indeed, our Supreme Court has recognized that "criminal trials [often] create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting Bucanis, 26 N.J. at 56, cert. denied, 357 U.S. at 910, 78 S. Ct. at 1157, 2 L. Ed. 2d at 1160).
As is the case here, the absence of a timely objection to a prosecutor's remarks during closing argument "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Timmendequas, supra, 161 N.J. at 576. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Ibid.; see also State v. Echols, 199 N.J. 344, 360 (2009) (quoting and applying this standard); Ramseur, supra, 106 N.J. at 323 (same).
There was nothing egregious or unduly prejudicial in any of the three passages of the prosecutor's summation now being isolated by defendant. We address each of them in turn.
The prosecutor's allusion to the general tendency of witness recollections to fade over time was innocuous. His remark fairly responded to the defense counsel's closing argument that had spotlighted various discrepancies of recollection among the eyewitnesses.
Additionally, it was not improper for the prosecutor to suggest, nor was it beyond the ken of lay jurors to consider, that a bullet fired in the air might not land directly below at the spot where it was fired. See N.J.R.E. 702 (calling for expert opinion only as to subjects beyond the ken of laypersons). The prosecutor was merely offering a plausible explanation for why the bullets were not discovered at the scene, thereby responding to defense counsel's closing argument that the bullets were missing because they were never fired at all. See State v. Wakefield, 190 N.J. 397, 463-66 (2007) (allowing prosecutors latitude in responding to comments made in defense counsel's summations); State v. Nelson, 173 N.J. 417, 472-74 (2002) (same).
Lastly, the prosecutor's failure to refer, reciprocally, to defendant when he urged the jurors to fulfill their duty to determine the facts and to apply the law was, at worst, a minor omission. The jurors surely would know from the court's instructions that both parties, not just the prosecutor, expected the jurors to discharge their responsibilities conscientiously.
In sum, none of the quoted remarks by the prosecutor warrants a new trial.
The next set of issues defendant raises pertains to the warrantless search of Lewis's apartment by the police. Defendant maintains that no exigent circumstances were present. Defendant further argues that Lewis only consented to the police entry into her apartment because the police misled her by threatening to report her to the Division of Youth and Family Services ("DYFS"). He further argues that his trial attorney was constitutionally ineffective in failing to move to suppress the fruits of the search. Lastly, he contends that the judge erred in striking defense counsel's question to Lewis, and her partial answer, that delved into the alleged police threat to call DYFS.
The record before us is insufficient to determine whether the police improperly obtained Lewis's consent to enter her apartment. Nevertheless, as the State argues in its responding brief, defendant has not shown that any such hypothetical violation of Lewis's constitutional rights would negate the jury's finding of his guilt of the weapons offenses and harassment. The police uncovered no evidence as the result of their entry into Lewis's apartment, except for the fact that they found defendant there and arrested him. The discovery of defendant at that location did not materially affect the credibility of the victim nor any of the eyewitnesses. The identity of defendant as the person who had brandished the gun and who had the altercation with the victim was not at issue. The location of his arrest was, at best, a collateral issue.
In the context of this case, any error in failing to suppress the proof that the police found defendant in Lewis's apartment, as opposed to some other place, was harmless. See State v. Bradshaw, 195 N.J. 493, 509 (2008); State v. Macon, 57 N.J. 325 (1971); see also R. 2:10-2. Because no harmful error occurred, defendant's claim that he was deprived of the effective assistance of counsel fails, as no actual prejudice flowed from counsel's non-filing of a motion to suppress. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (requiring a convicted defendant asserting ineffective assistance to show that his former counsel's deficient performance resulted in actual prejudice to his defense); see also State v. Fritz, 105 N.J. 42, 58 (1987).
Moreover, we detect no error in the trial judge striking Lewis's incomplete testimony about the police allegedly threatening to call DYFS. When Lewis began to testify regarding what the police had said to her, the prosecutor objected, and defense counsel immediately withdrew his question that had prompted Lewis's response. In striking the question and the witness's partial answer, the judge merely gave effect to defense counsel's withdrawal of his own query.
Defendant finally contends that his fifteen-year aggregate sentence, with a five-year period of parole ineligibility, was manifestly excessive. We disagree.
Given defendant's lengthy criminal and juvenile record, which included numerous prior indictable convictions, he was eligible as a persistent offender for an extended term under N.J.S.A. 2C:44-3a. Defendant does not contest his eligibility for such an extended term. Instead, he argues that the trial court should have applied mitigating factor one (lack of serious harm), N.J.S.A. 2C:44-1b(1), and mitigating factor two (lack of contemplation of serious harm), N.J.S.A. 2C:44-1b(2). Neither of those mitigating factors apply to the facts of this case, in which defendant was seen pointing a gun at the victim's head and threatening to kill her and others in her family. Although no physical injuries were inflicted by the ensuing gunshots, the manner in which defendant wielded the gun portended serious harm.
Even if, for the sake of argument, either or both of these mitigating factors applied, the aggravating factors (three, six, and nine) appropriately identified by the trial court would clearly outweigh them. See N.J.S.A. 2C:44-1a(3) (the risk of reoffense); N.J.S.A. 2C:44-1a(6) (the extent of defendant's prior record); and N.J.S.A. 2C:44-1a(9) (the need for deterrence).
We perceive no manifest injustice in the length of defendant's sentence and parole ineligibility period, as it does not shock our conscience. State v. Bieniek, 200 N.J. 601, 612 (2010); State v. Roth, 95 N.J. 334, 363-65 (1984).