March 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE D. DENNIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2533.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012
Before Judges Carchman, Fisher and Baxter.
Defendant Andre Dennis appeals from his June 5, 2009 conviction, following a trial by jury, on charges of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b) (count eight).*fn1
On count four, the judge sentenced defendant to life imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA). On count eight, the judge sentenced defendant to a ten-year term of imprisonment, subject to a five-year parole ineligibility term. The judge merged count two into count four, counts one and six into count two, and count five into count eight. The judge ordered that the sentence on count eight be served consecutively to the felony murder sentence. The aggregate sentence was life imprisonment plus ten years, subject to a parole ineligibility term of sixty-eight years, nine months and three days. Finally, the judge ordered that the sentence imposed on the present indictment be served consecutively to an eighteen-year NERA sentence previously imposed in Hudson County on indictment number 06-05-973 on July 22, 2008.
We reject defendant's contention that the trial judge committed reversible error when he refused to redact a portion of defendant's confession in which defendant remarked -- prior to admitting his role in the robbery and felony murder -- that his brother, co-defendant Antoine Dennis, had urged him to tell the truth. We likewise reject defendant's contentions that his sentence was excessive, that the sentence violated his reasonable expectations, that a discretionary extended term sentence should not have been imposed and that the sentence on count eight should have been concurrent, rather than consecutive. We do, however, agree with defendant that the judgment of conviction (JOC) should be amended to conform to the judge's oral pronouncement of sentence, thereby requiring the sentence on count eight to be concurrent to the sentence on count four rather than to count two.
In the latter part of December 2005, co-defendant Angela Pizzarelli*fn2 told defendant and Antoine that Saahron Jones, whom she had met at a bar in Elizabeth, kept $16,000 in cash at his apartment in Asbury Park. Pizzarelli, defendant and Antoine decided to drive from Jersey City, where they lived, to Asbury Park on the night of December 31, 2005 to rob Saahron.*fn3 In accordance with their plan, Pizzarelli knocked on the door of Saahron's apartment. When Saahron opened the door, she pointed a gun at his head and forced her way into the apartment, followed by defendant and Antoine. After ordering Saahron to lie face down on the living room floor, the three bound his wrists with shoelaces.
Defendant found a safe in an upstairs bedroom. He removed the shoelaces from Saahron's wrists, and demanded that Saahron unlock the safe. Saahron was unable to do so, at which time the three retied his wrists, put a pillow over his face and forced him to the floor.
At that point, Jaashawn Jones, Saahron's seventeen year-old brother, began knocking on the apartment door and yelling Saahron's name. Jaashawn came to Saahron's apartment to pick up his gold chain, which he planned to wear that night for a New Year's Eve party. Jaashawn's cousin, Prince Young, who had driven Jaashawn to Saahron's apartment, waited outside in a parked car.
Hearing someone knocking on the door, Pizzarelli directed defendant to open it and pull Jaashawn inside. Defendant complied, pointing a gun at Jaashawn's face as he pulled Jaashawn down to the floor. Because she did not want Jaashawn to be able to recognize her, she directed defendant to pull Jaashawn's jacket over his head. Even though Jaashawn's jacket was over his face, he was able to see his brother lying face down on the floor with his arms tied behind him and a female standing "overtop of him." Jaashawn heard Pizzarelli angrily state that there was "$30,000 in this house somewhere." When Saahron responded that the money was no longer in the apartment because he had lent it to a friend, who had subsequently been robbed, Pizzarelli responded that she "already knew about that."
Moments later, defendant increased the volume on the television and handed Pizzarelli a pillow. She put the pillow over Saahron's head and shot him in the head at point blank range.
Jaashawn waited until after he heard the three exit the apartment building, and then hurried to his brother Saahron, who was lying face down and gagging. Because the three intruders had thrown both his and Saahron's cell phones into a fish tank in the apartment, Jaashawn was unable to call the police. He ran out of the apartment to Young's car screaming, "they killed my brother, drive." Upon arriving at his parents' home, Jaashawn called the police. The police and an EMT squad arrived quickly, but Saahron was already dead of a gunshot wound to his head.
Subsequent investigation led to the discovery of evidence linking Pizzarelli, Antoine and defendant to Saahron's murder. The Asbury Park police arrested defendant on the morning of January 15, 2006 and took him to the satellite office of the Monmouth County Prosecutor's Office in Asbury Park, where the prosecutor's office maintained videotape and recording equipment necessary for the questioning of suspects. Although defendant initially agreed to provide a statement, and did answer some questions, part way through the questioning he invoked his right to counsel and refused to provide a statement until he spoke to an attorney. At that point, the investigators terminated the interview and took defendant back to the police station, where the police allowed defendant to speak to his brother Antoine.
After speaking with Antoine, defendant told the police that he was prepared to "talk . . . again." Defendant's statement to the police about his conversation with Antoine, which forms the basis of defendant's argument on appeal, was recorded on audiotape. The following conversation occurred between defendant and Detective Brian Veprek from the Monmouth County Prosecutor's Office on the afternoon of January 15, 2006:
Q: Ok, Detective Ash and myself had interviewed you earlier this morning, is that correct? [Defendant]: Yes.
Q: And that at a point during the interview you invoked your right to counsel is that correct? [Defendant]: Yes.
Q: Ok, meaning you wanted an attorney present[?] [Defendant]: Yes.
Q: Ok, we had stopped talking to you at that point when you invoked your right, correct? [Defendant]: Yes.
Q: Ok, now later on today some detectives from the Hudson County Prosecutor's Office had come down to Asbury Park to speak to [you] on an unrelated criminal investigation, is that correct? [Defendant]: Yes.
Q: Ok and you had spoke to them[?] [Defendant]: Yes.
Q: Ok and during the course of their interview with you they let you speak with your brother[?]
Q: Ok and your brother's name? [Defendant]: Antoine Dennis.
Q: Antoine Dennis, ok and you spoke with your brother Antoine Dennis[.] [W]hat did he tell you? [Defendant]: [H]e had told me that he knew a girl from that probably this case [sic].
Q: What [did] he tell you to do, did he tell you to do anything? [Defendant]: He said that you all are saying I was there and had my DNA and stuff, just tell them that we was there.
Q: Just tell them that we was there, meaning you and your brother, is that correct? [Defendant]: Yeah.
Q: And your brother told you that, correct? [Defendant]: Yeah.
Q: Ok. [Defendant]: Tell them the truth that we was there tell them.
Q: Ok all right and this evening late this afternoon you were transported to the Asbury Park Police Department once the Hudson County detectives were complete with you to be processed on the charges from concerning the Asbury Park investigation, is that correct?
Q: Ok and while at the Asbury Park Police Department, Detective Gamble from the Monmouth County Prosecutor's Office . . . and myself were in the back by the processing area and you told us that you wanted to talk to us, you wanted to talk to me again. [Defendant]: Yes.
Q: Ok, now and you're going to waive your right to an attorney at this time you want to talk to us about the Asbury Park incident without an attorney, is that correct? [Defendant]: Yes.
Before that portion of the audiotape was played for the jury, defendant objected to the "[j]ust tell them that we was there" portion of defendant's statement, arguing that Antoine's remark was inadmissible hearsay. In a hearing outside the presence of the jury, the judge overruled defendant's objection. The judge reasoned that although Antoine's remark, as repeated by defendant, did constitute hearsay, only the State was entitled to object on that ground because the hearsay remark was contained in defendant's own statement.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENSE COUNSEL'S REQUEST TO REDACT A PORTION OF THE DEFENDANT'S SECOND STATEMENT TO THE POLICE AFTER HE REALIZED THE PORTION SHOULD HAVE BEEN MADE PART OF THE VARIOUS REDACTIONS WHICH HAD BEEN MADE PRIOR THERETO.
II. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
A. Factual Introduction.
B. The sentence imposed on the basis the defendant was "NERA eligible" involving a life imprisonment term with an 85 percent parole disqualifier was improper based upon the pretrial cutoff memorandum or, alternatively, was manifestly excessive.
1. The pretrial memorandum, when read in conjunction with the plea cutoff hearing, limited the defendant's maximum sentencing exposure in its aggregate to a 35 year parole disqualifier.
2. Assuming the trial court could properly impose a life imprisonment term on the basis the defendant was "NERA eligible", the imposition of such a sentence was manifestly excessive.
C. The trial court abused its discretion by imposing a discretionary extended term on Count IV or, alternatively, imposed an extended term which exceeded the defendant's maximum sentencing exposure pursuant to the pretrial memorandum and plea cutoff hearing.
1. The totality of the circumstances did not warrant the imposition of a discretionary extended term on the basis the defendant was a persistent offender.
2. Assuming the propriety of the extended term imposed, the pretrial memorandum, taken in conjunction with the plea cutoff hearing, limited the defendant's sentencing exposure regarding any resulting parole disqualifier to an aggregate 35 year term, thus requiring that the sentence imposed on Count VIII be concurrent rather than consecutive in nature.
3. In the event it is determined the trial court could properly have imposed an extended life imprisonment term with a 35 year parole disqualifier and that the aggregate parole disqualifier to which the defendant was subjected was not restricted by the pretrial memorandum and plea cutoff hearing, then the consecutive 10 year term with a 5 year parole disqualifier imposed on Count VIII was manifestly excessive.
III. PAGE ONE OF THE JUDGMENT OF CONVICTION MUST BE CORRECTED TO ACCURATELY REFLECT THE
10 YEAR TERM WITH A 5 YEAR PAROLE DISQUALIFIER IMPOSED ON COUNT VIII WHICH WAS MADE CONSECUTIVE TO COUNT IV RATHER THAN TO COUNT II.
In Point I, defendant argues that the trial judge erred when he refused to exclude defendant's statement to Detective Veprek that his brother Antoine said "[j]ust tell them that we was there. . . . [t]ell them the truth that we was there tell them." He maintains that the statement was hearsay and its admission was not justified by any exception to the hearsay rule.
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). The Court has made clear that:
[u]nder that definition, the hearsay rule applies when a declaration is offered to prove the truth of the statement attributed to the declarant. It follows, therefore, that if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial. But if proffered evidence is hearsay, it can be admitted only pursuant to one of the exceptions to the hearsay rule. [State v. Long, 173 N.J. 138, 152 (2002) (internal citations omitted).]
For that reason, the threshold question is whether Antoine's remark was being offered in evidence to prove the truth of the matter asserted by Antoine, or for some other reason. A judge's decision admitting or excluding evidence is entitled to deference, and will be reversed only upon a finding of an abuse of discretion. State v. McDougald, 120 N.J. 523, 577-78 (1990).
Defendant argues that Antoine's remark, quoted by defendant, was offered, improperly, to prove that defendant's confession was in fact true. In contrast, the State argues that defendant's repetition of Antoine's remark was offered by the State not to demonstrate that defendant was in fact telling the truth, but rather to explain why defendant had done an about-face, and had decided to speak to the police without first consulting an attorney. The State points out that defendant's reference to his brother's "[t]ell them the truth" remark was made in response to Detective Veprek's question, "[w]hat [did] he tell you to do, did he tell you to do anything?" After defendant responded that Antoine encouraged him to "[t]ell them the truth," Detective Veprek stated that it was while defendant was at the Asbury Park Police Department speaking to the Hudson County detectives that defendant was able to speak with Antoine; and it was only after speaking with Antoine that he decided to "waive [his] right to an attorney" and "talk to us about the Asbury Park incident without an attorney." Detective Veprek then asked defendant, "is that correct?" Defendant answered "[y]es."
As is evident from the context, both before and after defendant repeated Antoine's "[t]ell them the truth" remark, Detective Veprek was questioning defendant about his prior exercise of his right to remain silent and his decision -- made after he spoke to Antoine -- to provide the Monmouth County Prosecutor's Office with a statement without first speaking to an attorney. For that reason, as the State argues, the "[t]ell them the truth" remark could have been utilized by the jury not to show that defendant was indeed telling the truth when he subsequently provided a confession, but instead to demonstrate the reasons why defendant decided to relinquish his right to remain silent.
So viewed, Antoine's out-of-court statement would not be excluded as hearsay. The remark would demonstrate solely the state of mind of the listener, defendant, and to demonstrate that defendant took certain action as a result of Antoine's statement. Evidence possessing some of the hallmarks of hearsay is considered non-hearsay when it is offered solely to show the listener's state of mind or that "the listener took certain action as a result" of the statement. Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 801 (2011). Moreover, "[w]hen a statement is offered to prove the probable state of mind it induced in the listener, such as to show information which the listener had which bore on the reasonableness or good faith of the listener's subsequent conduct, that evidence is not ordinarily excluded as hearsay." Spragg v. Shore Care, 293 N.J. Super. 33, 57 (App. Div. 1996). In sum, such state of mind evidence is excluded from classification as hearsay because it is not offered to prove the truth of the matter asserted, but rather is introduced simply to show that the statement was "in fact made and that the listener took certain action as a result thereof." Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007) (internal quotations marks and citation omitted).
It is also possible, as defendant contends, that in the absence of any instruction from the judge limiting the jury's consideration of Antoine's remark, the jury may have considered the remark as tending to establish that defendant's confession was, as his brother commanded, the truth. In that event, the statement from Antoine would still not be hearsay, as the statement would be offered to demonstrate its effect on the listener, defendant. As we have noted, such remarks are not ordinarily excluded as hearsay. Ibid.; Spragg, supra, 293 N.J. Super. at 57.
Even if we were to conclude that Antoine's remark was hearsay, any harm resulting from the improper admission of that evidence was cured by the judge's instruction to the jury. The judge instructed the jury that any references by Detective Veprek to what Antoine Dennis may have said are not evidence or proof that Antoine's statements were actually made. In relevant part, the judge instructed the jurors:
When considering the statements made by the defendant, I caution you that references made by Detective Veprek as to what . . . Antoine Dennis may have told detectives, which he, Veprek, incorporated in his questions is not evidence or proof that these statements, if actually made, are true. Again, the questions and their content are not evidence and may not be used by you as truth of what . . . Antoine Dennis may or may not have said.*fn4
We reject the claim defendant advances in Point I.
We turn to Point II, in which defendant raises a number of challenges to the sentence the judge imposed. First, he maintains that the sentence imposed on count four, life imprisonment subject to the eighty-five percent NERA parole ineligibility term, must be vacated. In support of that contention, defendant asserts that he "was unequivocally advised" by the judge during the plea cut-off discussion, see R. 3:9-1(e), that if convicted he would face a maximum sentence on count four of life imprisonment, subject to a thirty-five year parole ineligibility term. Defendant acknowledges the judge's additional comment that the parole ineligibility term "could be doubled" if defendant were to be found "extended term eligible." Nonetheless, defendant contends that because there was a degree of uncertainty in the judge's remarks, he interpreted the judge's statement as an indication that the judge might not impose an extended-term sentence and might not "double" the parole ineligibility term.
As the State concedes, the judge made an error during the plea cut-off discussion when he stated that defendant would face a maximum parole ineligibility term of thirty-five years if convicted of the felony murder. Ever since the Legislature amended N.J.S.A. 2C:43-7.2 in 2002, the eighty-five percent NERA parole ineligibility term has applied to murder convictions. See N.J.S.A. 2C:43-7.2(d)(1). Because the NERA statute states that a "sentence of life imprisonment shall be deemed to be 75 years," N.J.S.A. 2C:43-7.2(b), a defendant convicted of murder, who is sentenced to life imprisonment, faces a mandatory NERA parole ineligibility term of eighty-five percent of seventy-five years, or approximately sixty-three years and nine months before becoming eligible for parole.
A judge has no discretion on the imposition of the NERA parole ineligibility term. State v. Johnson, 376 N.J. Super. 163, 168-69 (App. Div.), certif. denied, 183 N.J. 592 (2005). A sentence that does not impose the relevant provisions mandated by NERA is illegal and must be vacated. Id. at 169-70. For these reasons, we conclude that even if defendant had been misled by the judge's comments, which is highly doubtful, the judge could not have imposed less than sixty-three years and nine months as a parole ineligibility term on count four. We reject defendant's arguments that the judge was not authorized to impose more than a thirty-five year period of parole ineligibility on count four.
Next, defendant argues that his sentence is manifestly excessive. This argument lacks merit. Suffice it to say, the judge's finding of aggravating factors three, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior record and the seriousness of the offenses of which he had been convicted, N.J.S.A. 2C:44-1(a)(6); and number nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), were amply supported by the record. Defendant had five prior convictions on two different sentencing dates, culminating in his aggravated manslaughter conviction on July 22, 2008 for a murder committed in Jersey City a mere eight days before his participation in the murder of Saahron Jones.
In particular, on May 23, 2003, defendant was convicted on two different indictments of possession of a controlled dangerous substance (CDS) and distribution of CDS within a school zone. On July 22, 2008, defendant was convicted on three different indictments of possession of CDS with intent to distribute within a school zone, conspiracy to distribute CDS and aggravated manslaughter. In light of defendant's extensive, and serious, prior record, we have no occasion to disturb the judge's findings that: there was a substantial risk defendant would commit other offenses; defendant's prior record was both extensive and serious; and there was a need to deter defendant and others from committing the crime of felony murder.
Next, defendant challenges the judge's imposition of an extended term sentence. This argument lacks sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Suffice it to say, the extended term sentence fully satisfied the requirements of State v. Pierce, 188 N.J. 155, 169-70 (2006).
Finally, defendant asserts that the judge erred by requiring that the sentence on the charge of certain persons not to possess weapons (count eight) should be served consecutively to the sentence imposed for felony murder. The judge's reasons for doing so were wholly appropriate. As the judge correctly observed, the certain persons conviction is "separate and apart from the commission of felony murder," and "anything less than a consecutive sentence would frustrate the deterrent effect of the [certain persons] statute and the intent of the Legislature in further protection of the public." We reject defendant's contention that the judge erred when he required the certain persons sentence to be served consecutively. The judge's decision is wholly in accord with the principles articulated in 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).
In sum, we reject all of the sentencing arguments defendant advances in Point II. We do, however, agree with his observation that the judgment of conviction (JOC) should be amended so that the sentence on count eight be ordered to run consecutively to count four, rather than to count two, as count two was merged into count four.
We affirm defendant's conviction and sentence, but remand for correction of the JOC in the manner we have noted.