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State of New Jersey v. Bryden Robert Williams A/K/A Lance Riddick

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 9, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRYDEN ROBERT WILLIAMS A/K/A LANCE RIDDICK, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-02-0150.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 13, 2011

Before Judges Messano, Espinosa and Kennedy.

Following a jury trial, defendant Bryden Williams was convicted of the first-degree murder of Joel Whitley, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(d) (count two); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). After merging count three into count one, the judge sentenced defendant to a term of 50 years, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent term of four years on count two.

Defendant raises the following points on appeal:

POINT I

THE ABSENCE OF A JURY INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF MURDER DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV: N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (NOT RAISED BELOW).

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE In a pro se supplemental brief, defendant raises the following issues:

POINT I

DEFENDANT'S FUNDAMENTAL RIGHT TO DUE PROCESS WAS VIOLATED WHEN [A] GRAND JUROR WHO HAD INTIMATE KNOWLEDGE OF THE ACCUSATIONS LODGED AGAINST HIM WAS ALLOWED TO DELIBERATE AND DETERMINE STATUS OF INDICTMENT CONTRARY TO THE VI, XIV AMEND. OF THE U.S. CONST. ART. I PAR. 10 OF THE N.J. CONST.

POINT II

THE STATE'S OVER USAGE OF HEARSAY EVIDENCE DURING THE GRAND JURY PROCESS VIOLATED THE DEFENDANT'S FUNDAMENTAL RIGHT TO DUE PROCESS CONTRARY TO THE VI, XIV AMEND. U.S. CONST. ART. I PAR. 10 N.J. CONST.

POINT III

THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE GRAND JURY PROCESS WHICH ULTIMATELY LED TO A DIRECTED INDICTMENT CONTRARY TO DEFENDANT'S FUNDAMENTAL RIGHT TO DUE PROCESS CONTRARY TO THE VI, XIV AMEND. U.S. CONST. ART. I PAR. 10 N.J. CONST.

POINT IV

TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ALLOWED INADMISSIBLE HEARSAY STATEMENTS INTO EVIDENCE WHICH VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION POINT V

TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING OVER OBJECTION OF DEFENSE COUNSEL, MS. GIBSON'S SECOND VIDEO TAPED STATEMENT TO BE PLAYED, AFTER MS. GIBSON LEFT THE STAND WHICH VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION POINT VI

TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTED [sic] THE HEARSAY TESTIMONY AND HIGHLY PREJUDICIAL SPECULATION THROUGH PATHOLOGIST DR. HUA WHO DID NOT PERFORM THE AUTOPSY ADMITTING SUCH EVIDENCE VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION

I.

On September 3, 2006, at approximately 2:00 a.m., members of the Plainfield police department found Joel Whitley dead in an alley between two apartment buildings. Various witnesses testified that on the evening of September 2, Whitley, Omar Boyd, and Paris Whaley drove to the apartment of Dynesha Gibson, on East Sixth Street, "to hang out and drink." Whitley became intoxicated and began arguing with another guest, Tony Sullivan. Gibson told Boyd and Whitley to leave.

Boyd testified that after leaving Gibson's apartment, Whitley drove Boyd and Whaley to Whaley's home to drop her off. When they arrived, Whitley realized he had left his cell phone at Gibson's apartment and, against Boyd's advice, the men drove back to retrieve it. Upon their return, Boyd stepped out of the car and "yelled . . . and Erin [McCoy] came to the window". Whitley remained in the car.

Boyd asked McCoy, Gibson's roommate, to hand him Whitley's cell phone. When McCoy stepped away from the window, Gibson came to the window and said Whitley "wasn't getting the phone back". Whitley stepped out of the car and asked Gibson to hand him his phone. Gibson responded, "No," and "threw water on him." Whitley "flipped out a little bit" and "started kicking the door." Gibson told Boyd and Whitley to leave "because [her] brother Bolo," defendant, was coming.

Although defendant and Gibson were not in fact related, they shared a close sibling-like relationship. Boyd claimed that shortly thereafter, defendant arrived at the apartment in a pick-up truck and screeched to a halt. He asked Boyd, "What's the problem." Gibson told defendant that Boyd and Whitley had "disrespected" her, and defendant produced a handgun and aimed it at Boyd. Boyd told defendant that the situation was "not serious," and Whitley and he had only returned "to get the phone."

Gibson told defendant that Whitley had been disrespectful, and defendant approached and put the gun to Whitley's head. Defendant forced him to walk toward the side of the apartment building. Once there, Whitley said, "Get the gun out of my face," and knocked defendant's arm away. Defendant fired one shot at Whitley's chest. Whitley fell to the ground, and Boyd ran from the scene. Boyd testified that at no time that evening did Whitley or he have a gun.

Defendant testified in his own behalf. He received a call that there was a problem at the apartment, although he "couldn't tell exactly who was on the phone." He drove to Gibson's and saw Whitley "banging on the door." Whitley "said something about f'ing somebody up."

He asked Whitley and Boyd to "get away" from the door, and they approached him, causing him to back away. The three men were in the alley when Whitley said, "I got something for you," and "pulled a gun out." Defendant "backed up" and put his hands up with palms facing forward. Whitley raised the gun and "put it in [defendant's] face." Defendant moved the gun away from his face, and, when Whitley became distracted by Boyd, defendant "rushed for the gun."

A struggle ensued during which the gun discharged. Defendant claimed that he "just had [Whitley's] hands and maybe the top part of the gun, but [he] didn't . . . ever have control of that gun." Defendant never intended to shoot Whitley but "was really trying to disarm him." After the gunshot, Whitley "fell" with the gun still in his hand. Defendant realized Boyd had fled, so he got back in his truck and drove away. The gun was never recovered.

The prosecutor called Gibson as a witness in the State's case. At times during her testimony, Gibson was evasive, reluctant to answer, or alleged a lack of recollection. She had provided statements to investigators, and the prosecutor sought to refresh her recollection by reading portions of her statements.

With her memory refreshed, Gibson testified that she had heard McCoy speaking to someone from a window, but she did not know who was outside. Gibson claimed that McCoy asked her to "call Bolo," but Gibson refused. McCoy used her cell phone, and Gibson heard her say, "Come over here." Gibson also heard McCoy say, "They're here," refer to a gun, and tell her to look out of the window. Gibson asked if McCoy meant that Whitley had a gun, McCoy replied, "No." McCoy told her that she saw defendant outside and Whaley and Boyd running. Gibson remained evasive in her testimony, and she said that she "might have been telling [police] what they wanted to hear," and the "statement [she] gave . . . could have been stretched a little bit." She refused to elaborate.

After cross-examination, Gibson was excused and the prosecutor sought a hearing outside the presence of the jury pursuant to State v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff'd, 121 N.J. 1 (1990). The prosecutor argued that Gibson's trial testimony was inconsistent with her formal statement given to investigators. Defense counsel objected, arguing Gross was inapplicable and, alternatively, that "it would have been appropriate to confront the witness with [the video-tape] while on the stand, but not to play it as substantive evidence." Gibson was not recalled as a witness, and the judge permitted the prosecutor to play for the jury a portion of Gibson's videotaped statement.

Without objection, the State produced Dr. Zhongxue Hua, the Chief Medical Examiner of Union County. Hua did not perform the autopsy on Whitley, but he examined the autopsy photos, physical evidence, and report written by Dr. Leonard Zaretski, the Chief Medical Examiner at the time, who conducted the autopsy. Hua opined that Whitley died from a "gunshot wound of [the] chest and abdomen." When asked whether there was "stippling or gun powder residue found on the hands, head, or anywhere else on decedent," Hua responded in the negative. When asked whether there were "any indications in the autopsy . . . of a struggle," Hua responded that there was "no defensive wound on the body . . . ." Hua inspected and analyzed Whitley's clothing collected at the autopsy, and gave his opinions regarding the "bullet wounds" or "defects" on the items.

On cross-examination, Hua testified that he could not conclude from the photographs he reviewed of the scene that a struggle occurred. Hua also testified that he disagreed with Zaretski's finding of a bullet hole in Whitley's jacket. He responded to defense counsel's questions regarding the angle and distance of the shot, but could offer no firm opinions. Defense counsel also questioned Hua extensively regarding a transparency prepared by the State Police from an analysis of gunshot residue on Whitley's clothing. Zaretski's autopsy report itself was never admitted in evidence.

At the charge conference, the judge indicated he would charge self-defense, and aggravated manslaughter and manslaughter as lesser-included offenses of murder.

I looked at . . . passion provocation [manslaughter] and I don't think that applies here. . . .

[I]f you look at the elements of passion provocation, one, that there was an adequate provocation; two, that the provocation impassioned the defendant; three, the defendant did not have a reasonable time to cool off between the provocation and the act that caused the death; four, the defendant did not actually cool off . . . before committing the act which caused the death.

According to the State's case passion provocation clearly does not apply. The defense case is that the victim drew a weapon on the defendant. And he was acting to defend himself. And . . . he either in his act of self-defense or it was an accident that the gun went off . . . . I don't see where the victim had done something to him and then there -- a period of time elapsed, not a long period, but a period of time elapsed, and then he did something because of that provocation. I don't see that argument, [defense counsel]. Do you agree?

Defense counsel agreed, but continued, "If I come up with anything . . . I'll let you know." The issue never arose again, and there was no objection to the charge as given.

II.

Defendant argues that "the shooting was provoked by a significant physical confrontation that included the victim threatening defendant with a gun." As a result, he contends the judge had a sua sponte obligation to charge passion/provocation manslaughter as a lesser-included offense, and his failure to do so requires reversal. We disagree.

As the Supreme Court instructed,

Murder is reduced to manslaughter if the murder is committed in the heat of passion in response to a reasonable provocation. N.J.S.A. 2C:11-4b(2). Passion/provocation manslaughter has four elements: (1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; and (4) a defendant who did not cool off before the slaying. The first two elements of the offense are objective; thus, if they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury. [State v. Josephs, 174 N.J. 44, 103 (2002) (citations omitted).]

To be sure, in order to secure a murder conviction, "the State must prove beyond a reasonable doubt that defendant had not killed his victim in the heat of passion caused by a reasonable provocation." State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001) (citations omitted), certif. denied, 174 N.J. 38 (2002).

"[A] trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). "When deciding whether to instruct a jury on passion/provocation manslaughter, a trial court should view the situation in the light most favorable to the defendant." State v. Mauricio, 117 N.J. 402, 412 (1990).

It is clear that the evidence presented two starkly different set of facts. Boyd testified that Whitley was unarmed when defendant held the gun to his head and forced him into the alley. Defendant trained the gun on his face, and Whitley pushed his hand away. Defendant then fired the fatal shot to Whitley's chest. Defendant testified that Whitley had the gun and aimed it at him. When Whitley was distracted, defendant charged for the gun and, while the men struggled over the weapon, it discharged. According to defendant, he never pulled the trigger or intended to shoot Whitley.

The essential question, therefore, is whether the evidence could be seen as raising a reasonable doubt that defendant shot Whitley after a "reasonable and adequate provocation." Josephs, supra, 174 N.J. at 103. "If no jury could rationally conclude that the State had not proven beyond a reasonable doubt that the asserted provocation was insufficient to inflame the passions of a reasonable person, the trial court should withhold the charge." Mauricio, supra, 117 N.J. at 412.

Defendant cites extensive precedent in his brief, which we acknowledge. However, defendant fails to explain how that precedent applies to the evidence actually adduced. He contends, for example, that if the instruction was given, the jury "could have accepted defendant's account of the circumstances preceding the shooting[,] but concluded that [defendant] (a much larger man) wrested the gun away from the victim and then shot him," or that defendant's "use of deadly force was simply unnecessary and could have been avoided by retreating." However, "[p]assion/provocation manslaughter is an intentional homicide committed under extenuating circumstances that mitigate the murder." State v. Robinson, 136 N.J. 476, 481 (1994) (emphasis added) (citing 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.10, at 252 (1986)).

There is no evidence that supports these arguments because, among other things, defendant denied shooting Whitley at all.

Nor is the charge supported by Boyd's testimony. For example, if the jury believed Whitley pushed away defendant's hand before the shot was fired, that would be an inadequate provocation as a matter of law. "The question of whether the provocation is adequate essentially amounts to whether loss of self-control is a reasonable reaction." Mauricio, supra, 117 N.J. at 412. The "test is purely objective, [and] the provocation must be 'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" Ibid. (internal citation and quotation omitted). According to Boyd, only defendant was armed, and Whitley's actions were insufficient to provoke the deadly response.

The judge's decision not to charge passion/provocation manslaughter was not error.

III.

We consider the arguments raised in defendant's pro se brief.

A.

Defendant contends a deliberating grand juror "had intimate knowledge of the accusations lodged against him," the indictment was based upon hearsay, and the prosecutor committed misconduct before the grand jury. These arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).

Defendant never raised these issues before trial as required by Rule 3:10-2(c). Moreover, "a guilty verdict is universally considered to render error in the grand jury process harmless." State v. Simon, 421 N.J. Super. 547, 551 (App. Div. 2011)(citing State v. Lee, 211 N.J. Super. 590, 599 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987)). Defendant has failed to specifically explain his claim regarding a biased grand juror or prosecutorial misconduct, and it is clear "that a grand jury may return an indictment based largely or wholly on hearsay testimony." State v. Thrunk, 157 N.J. Super. 265, 278 (App. Div. 1978) (citing State v. Ferrante, 111 N.J. Super. 299, 304 (App. Div. 1970)).

B.

Defendant next alleges error regarding Gibson's testimony. He claims that Gibson was permitted to testify about hearsay statements made to her by McCoy, i.e., that defendant had arrived at the apartment and someone, not Whitley, had a gun; and it was error to permit the prosecutor to play portions of Gibson's videotaped statement to the police.

There was no objection to Gibson's testimony regarding McCoy's statements. So, we review the issue under the plain error standard. See R. 2:10-2 (errors by the trial court shall be disregarded on appeal unless they are "clearly capable of producing an unjust result").

The present sense impression exception to the hearsay rule, N.J.R.E. 803(c)(1), "provides for the admissibility of '[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate,' notwithstanding that the declarant might have been available to testify at trial." In re J.A., 195 N.J. 324, 336-37 (2008) (quoting N.J.R.E. 803(c)(1))(internal citations omitted). McCoy's statements to Gibson qualify under this exception. More importantly, admission of the statements did not prejudice defendant, because McCoy did not identify the person who possessed the gun by name, and it was undisputed that defendant arrived at the scene implicitly as the result of McCoy's phone call.

Defendant next asserts that Gibson's videotaped statement failed to meet the criteria for admission as a prior inconsistent statement established in Gross and permitting the tape to be played after Gibson left the witness stand violated his right of confrontation. We disagree.

A prior inconsistent statement may be admissible as substantive evidence. N.J.R.E. 803(a)(1). However, admission of such evidence on behalf of one who called the witness is proper only after a hearing at which the judge is required to consider a number of factors. Gross, supra, 216 N.J. Super. at 109-10. Additionally, "a feigned lack of recollection is an inconsistency on which the admission of a witness's prior inconsistent statement may be based." State v. Brown, 138 N.J. 481, 542 (1994), overruled on other grounds, State v. Cooper, 151 N.J. 326, 361-63, 377 (1997).

In the instant case, the judge properly found the videotape was admissible after analyzing each of the Gross factors. The judge did not abuse his discretion in concluding the prior statement was admissible as substantive evidence. See State v. Rose, 206 N.J. 141, 157 (2011) ("A trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion.").

Defendant argues that the introduction of the statement violated his right to confrontation provided by the Sixth Amendment of the United States Constitution. Admission of an out-of-court testimonial statement violates the Sixth Amendment's Confrontation Clause unless the witness is unavailable and defendant had an opportunity to cross-examine that witness. State v. Basil, 202 N.J. 570, 591 (2010) (citing Crawford v. Washington, 541 U.S. 36, 50-53, 68, 124 S. Ct. 1354, 1363-65, 1374, 158 L. Ed. 2d 177, 192-94, 203 (2004)). Here, Gibson testified and was extensively cross-examined. The credibility of both her in-court testimony and prior statement to the police was seriously attacked before the jury. There was no violation of the Confrontation Clause.

C.

Defendant further contends that permitting Hua to testify violated the Confrontation Clause because he had no opportunity to cross-examine Zaretski, who actually performed the autopsy and authored the report. The State argues that Hua offered an "independent opinion about underlying testimonial reports" "based on many sources, including photographs," in addition to Zaretski's autopsy report.

Whether Crawford's prohibition extends to the admission of hearsay expert reports and testimony has been the subject of significant, recent exposition by the United States Supreme Court.

In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 2530, 174 L. Ed. 2d 314, 319 (2009), certificates prepared by laboratory analysts "reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine" were admitted at trial. The Court held that the Confrontation Clause proscribed the introduction of the certificates, finding they were "incontrovertibly a 'solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Id. at ___, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1354, 158 L. Ed. 2d at 177 (citation and internal quotation marks omitted)).

The issue arose again in Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct. 2705, 2710-11, 180 L. Ed. 2d 610, 616-17 (2011), where the State's principal evidence at the defendant's drunk driving trial was a forensic laboratory report certifying the defendant's blood-alcohol concentration. However, the prosecution neither called the forensic analyst who performed the test and certified the results as a witness, nor asserted that he was unavailable. Id. at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618. Instead, the prosecutor called a different analyst, familiar with the testing device used to analyze the defendant's blood and with laboratory procedures, to admit the report. Ibid.

The Court found that the defendant's right of confrontation had been violated by the introduction of the report since the defendant was denied an opportunity to confront the actual analyst. Id. at ___, 131 S. Ct. at 2717, 180 L. Ed. 2d at 624. The "analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess 'the scientific acumen of Mme. Curie and the veracity of Mother Teresa.'" Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 621 (quoting Melendez-Diaz, supra, 557 U.S. at ___, n. 6, 129 S. Ct. at 2537, 174 L. Ed. 2d at 327.).

In her concurring opinion, Justice Sotomayor discussed alternatives when an analyst is unavailable. Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 628. She noted that Bullcoming had not addressed the "constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence." Id. at ___, 131 S. Ct. at 2720, 180 L. Ed. 2d at 629. She further explained that, in Bullcoming, the State offered the report itself into evidence but did not assert that the witness who testified about the report "offered an independent, expert opinion about Bullcoming's blood alcohol concentration." Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629.

On June 28, 2011, the Supreme Court granted certiorari in Williams v. Illinois, __ U.S. __, 131 S. Ct. 3090, 180 L. Ed. 2d 911 (2011), and the case was argued on December 6. There, the Illinois Supreme Court held that an expert witness could render an opinion based upon an analyst's report regarding DNA testing performed on evidence. People v. Williams, 939 N.E.2d 268, 282

(Ill. 2010). The actual lab report itself was not admitted. Williams, supra, 929 N.E.2d at 272. The expert witness played no part in making the analysis, and had no personal knowledge of how the test was done. Ibid. Specifically, the Court will now decide whether the testimony of a forensic expert based, in part, on reports or data generated by other analysts violates the Confrontation Clause if those analysts are not produced as witnesses.

We have charted a path through the various scenarios occasioned by Crawford's application to expert reports and testimony. In State v. Berezansky, 386 N.J. Super. 84, 91 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82-83 (2008), we held that admission of a lab certificate of tests performed on the defendant's blood without any witness testifying violated the Confrontation Clause. Accord State v. Kent, 391 N.J. Super. 352, 355 (App. Div. 2007).

However, in State v. Rehmann, 419 N.J. Super. 451 (App. Div. 2011), we reached a different result in circumstances more closely akin to those in this case. In Rehmann, id. at 453, the State called a forensic scientist to testify about defendant's blood alcohol content, although he had only observed another chemist examine the defendant's blood sample and did not perform the test himself. The testifying witness "signed the laboratory report, certifying the accuracy of the testing." Ibid.

We noted "[o]ur courts have yet to consider this surrogate-witness problem." Id. at 457. We held, After careful consideration, we have no hesitation in agreeing . . . that experts and their opinions are not fungible; to hold otherwise would make a mockery of the Confrontation Clause. We thus agree with the argument that the Confrontation Clause is not satisfied by calling just anyone to the stand to testify about laboratory tests or other scientific results. A "straw man" will not do. The State must provide a witness who has made an independent determination as to the results offered. The right of cross-examination must be meaningful and is not satisfied when the State calls a witness whose knowledge is limited to the four corners of the laboratory certification produced and executed by another. [Id. at 457-58 (footnote omitted) (emphasis added).]

We concluded that "because [the witness] was the author of the laboratory certificate and because he supervised another's operation of the gas chromatograph, [the witness] was the appropriate person to be called to testify about the results of the testing of [the] defendant's blood sample." Id. at 459.

N.J.R.E. 702 permits a qualified expert witness to testify in the form of an opinion, and N.J.R.E. 703 permits the witness to discuss the basis of his opinion. "[H]earsay statements upon which an expert relies are ordinarily admissible provided they are of a type reasonably relied upon by experts in the field." State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002) (citing State v. Pasterick, 285 N.J. Super. 607, 620-21 (App. Div. 1995)), aff'd, 177 N.J. 229 (2003). Such hearsay statements are admissible for the limited purpose of apprising the jury of the basis of the opinion. Ibid.

Here, Hua testified about his own "independent determination" based, not only upon Zaretski's report, but also upon the photographs of the autopsy and his personal examination of Whitley's clothing. Hua's connection with the autopsy was, concededly, more attenuated than the expert witness in Rehmann. However, Hua was clearly "a witness who . . . made an independent determination as to the results offered." Rehmann, supra, 419 N.J. Super. at 457. Reversal in this case is not compelled by the present state of our jurisprudence.

Moreover, the autopsy report was not admitted into evidence and defendant never objected to Hua's testimony. Indeed, as mentioned above, defense counsel extensively cross-examined Hua utilizing findings made at autopsy, and presumably contained in Zaretski's report, as well as photographs taken at autopsy. Under the specific circumstances presented, we cannot conclude that permitting Hua to testify as an expert violated the Confrontation Clause.

IV.

At sentencing, the judge found aggravating factors three, six and nine. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense);

(6)(the extent of defendant's prior record and the seriousness of the offense); and (9) (the need to deter defendant and others). These findings were amply supported by the record, including defendant's previous convictions for numerous drug offenses, eluding and receiving stolen property. Defendant does not allege error in this regard.

Instead, defendant argues that the judge failed to consider that he "acted under a strong provocation," in circumstances establishing "substantial grounds tending to excuse or justify [his] conduct, though failing to establish a defense," and that "the victim . . . induced or facilitated . . . commission" of the crime. N.J.S.A. 2C:44-1(b)(3), (4) and (5).

The provocation referenced in N.J.S.A. 2C:44-1(b)(3) "relates to the conduct of the victim toward[s] the actor." State v. Teat, 233 N.J. Super. 368, 372 (App. Div. 1989) (quoting State v. Jasuilewicz, 205 N.J. Super. 558, 576 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986)). Similarly, N.J.S.A. 2C:44-1(b)(5) applies only if Whitley's actions "induced or facilitated [the] commission" of the homicide. Given the jury's verdict, neither of these mitigating sentencing factors applies.

A finding under N.J.S.A. 2C:44-1(b)(4) typically involves a defendant's mental state at the time the crime was committed. See, e.g., State v. Jarbath, 114 N.J. 394, 398, 414-15 (1998) (mentally retarded twenty-one year old defendant who had also been diagnosed as psychotic); State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002) (defendant, an alcoholic, suffered from post-traumatic stress disorder related to spousal abuse by the victim); State v. Colella, 298 N.J. Super. 668, 676 (App. Div.) (finding mitigating factor four applicable because of defendant's troubled family background), certif. denied, 151 N.J. 73 (1997). No evidence supported such a finding in this case.

Our review of the trial judge's sentence is limited. An appellate court must "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Id. at 608; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).

We find no basis to reverse the sentence imposed by the trial judge.

Affirmed.

20120309

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