April 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMAL D. SCOTT, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYLEEK J. BAKER, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES S. RUSSELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-05-0869.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2011 -
Before Judges Messano, Espinosa and Kennedy.
We consider these appeals back-to-back since they all arise from defendants' convictions for the February 7, 2006, murder of Jose Francisco Olivares in a Lakewood barbershop. The State contended that defendant Tyleek Baker shot Olivares, and defendants James Russell and Jamal Scott*fn1 conspired with Baker and acted as his accomplices. Defendants were tried jointly and convicted by a jury on all counts. Defendant Baker subsequently pled guilty to the fifth count of the indictment that charged him separately with possession of a firearm by certain persons previously convicted, N.J.S.A. 2C:39-7(b)(1).
We state the specific points raised by each defendant recognizing significant overlap in their arguments.
As to defendant Jamal Scott (A-3455-08T4)
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE JURY'S VERDICT
A. THE STATE FAILED TO PRESENT SUFFICIENT TESTIMONY ESTABLISHING THE DEFENDANT'S CRIMINAL CULPABILITY AS AN ACCOMPLICE WITH RESPECT TO PURPOSEFUL/KNOWING MURDER
B. THE STATE FAILED TO PRESENT SUFFICIENT TESTIMONY ESTABLISHING THE DEFENDANT'S CRIMINAL CULPABILITY INVOLVING CONSPIRACTY TO COMMIT PURPOSEFUL/KNOWING MURDER EMBODIED IN COUNT II POINT II
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSELS' MOTION A FOR [SIC] MISTRIAL ARISING OUT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY CO-DEFENDANT DANIEL THOMAS DURING CROSS-EXAMINATION BY CO-COUNSEL REFERENCING THE EXISTENCE OF RETALIATION WHICH HAD OCCURRED, CONTRARY TO THE TRIAL COURT'S EXPRESS RULING PRECLUDING ANY SUCH
REFERENCE FROM BEING BROUGHT TO THE ATTENTION OF THE JURY POINT III
SINCE THE PROSECUTION EXERCISED A PEREMPTORY CHALLENGE ON CONSTITUTIONALLY-IMPERMISSIBLE GROUNDS BY EXCUSING ONE OF THE ONLY TWO AFRICAN-AMERICAN JURORS FROM THE JURY, THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL POINT IV
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF IMPROPER OPINION TESTIMONY ELICITED FROM CHRISTIAN VIVAR GRANADOS DESCRIBING THE DEFENDANT AS NEITHER APPEARING SURPRISED NOR UPSET AT THE TIME OF THE SHOOTING (PARTIALLY RAISED BELOW)
THE TRIAL COURT PROPERLY GRANTED THE DEFENDANT'S MOTION PRECLUDING THE STATE FROM ELICITING TESTIMONY REGARDING THEIR STREET NAMES, AND THE APPELLATE DIVISION ERRED BY REVERSING THE TRIAL COURT'S RULING ON INTERLOCUTORY APPEAL POINT VI
THE DEFENDANT'S CONSTITUTIONAL RIGHT TO BE PRESENT AT HIS TRIAL WAS VIOLATED WHEN THE TRIAL COURT PROVIDED WRITTEN TRANSCRIPTS OF FOUR WITNESSES TO THE JURY PURSUANT TO ITS REQUEST DURING DELIBERATIONS (NOT RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
As to defendant Tyleek Baker (A-4794-08T4)
THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FAILURE TO ANALYZE THE RELIABILITY OF THE OUT-OF-COURT IDENTIFICATIONS OF THE DEFENDANT VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO BE PROTECTED AGAINST UNFAIR AND INADMISSIBLE INDENTIFICATIONS POINT II
REPEATED D[I]SCOVERY VIOLATIONS BY THE STATE DENIED THE DEFENDANT A FAIR TRIAL POINT III
EXCLUSION OF MINORITY JURORS VIOLATED THE DEFENDANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW POINT IV
THE TRIAL COURT ABUSED ITS DISCRETION AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY FAILING TO ISSUE AN IMMEDIATE AMELIORATING INSTRUCTION CONCERNING THE PROSECUTOR'S OPENING STATEMENT THAT THE WITNESSES "MIGHT BE RELUCTANT" TO TESTIFY AGAINST THE DEFENDANT (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW)
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY PERMITTING THE PROSECUTOR TO PLAY A RECORDING OF AN EMERGENCY "911" CALL DURING THE TRIAL POINT VI
THE TRIAL COURT MISAPPLIED THE "OPENING THE DOOR" DOCTRINE IN DENYING TRIAL COUNSEL'S MOTION FOR A MISTRIAL BECAUSE OF THE "RETALIATION" TESTIMONY BY DANIEL THOMAS POINT VII
THE TRIAL COURT'S INSTRUCTIONS ON FLIGHT PREJUDICED THE DEFENDANT'S RIGHT TO A FAIL [SIC] TRIAL BECAUSE THERE WAS NO EVIDENCE TO SUPPORT THE LEGAL CONCEPT OF FLIGHT POINT VIII
THE TRIAL COURT COMMITTED PLAIN ERROR BY PERMITTING THE JURY TO READ TRANSCRIPTS OF THE TRIAL TESTIMONY OF FOUR WITNESSES DURING ITS DELIBERATIONS IN THE JURY ROOM (NOT RAISED BELOW)
THE AGGREGATE BASE CUSTODIAL TERM OF LIFE IMPRISONMENT PLUS 10 YEARS WAS MANIFESTLY EXCESSIVE POINT X
THE TRIAL COURT'S ORDER PRECLUDING ADMISSION OF THE DEFENDANTS' STREET NAMES SHOULD NOT HAVE BEEN REVERSED BY THE APPELLATE DIVISION ON INTERLOCUTORY APPEAL In a supplemental pro se brief, Baker raises the following point:
THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF THE TRIAL COURT'S PRIOR INVOLVEMENT WITH THE DEFENDANT AS AN ASSISTANT PROSECUTOR OR THE MATTER SHOULD BE REMANDED FOR A HEARING ON THIS ISSUE (NOT RAISED BELOW)
As to defendant James Russell (A-4841-08T4)
THE PHOTOGRAPHIC IDENTIFICATIONS OF DEFENDANT WERE IMPERMISSIBLY SUGGESTIVE POINT TWO
DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE STATE'S EXERCISE OF A PEREMPTORY CHALLENGE ON CONSTITUTIONALLY IMPERMISSIBLE GROUNDS TO STRIKE AN AFRICAN-AMERICAN JUROR FROM THE JURY POINT THREE
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE
THE ADMISSION OF IMPROPER OPINION TESTIMONY DENIED DEFENDANT A FAIR TRIAL POINT FIVE DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S REPEATED DENIALS OF MISTRIAL MOTIONS BASED UPON THE STATE'S BELATED PROVISION OF DISCOVERY AND THE PROSECUTOR AND A STATE WITNESS' [SIC] VIOLATION OF THE COURT'S ORDER PROHIBITING ANY MENTION OF ACTS OF RETALIATION AGAINST HIM POINT SIX
THE MISCONDUCT OF TRIAL COUNSEL FOR DEFENDANT BAKER DENIED DEFENDANT RUSSELL A FAIR TRIAL POINT SEVEN
THE TRIAL COURT PROPERLY GRANTED THE DEFENDANTS' MOTION PRECLUDING THE USE OF THE DEFENDANTS' STREET NAMES AT TRIAL, AND THE APPELLATE DIVISION ERRED IN REVERSING THE TRIAL COURT'S OPINION POINT EIGHT
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S NEW TRIAL MOTION POINT NINE
THE TRIAL ERRORS, IN THEIR AGGREGATE, DENIED DEFENDANT A FAIR TRIAL POINT TEN
DEFENDANT'S SENTENCE WAS EXCESSIVE POINT ELEVEN
THE FAILURE TO PERFORM THE READ-BACK OF REQUESTED TESTIMONY IN OPEN COURT DENIED DEFENDANT A FAIR TRIAL We have considered these arguments in light of the record and applicable legal standards. We affirm the defendants' convictions and the sentences imposed, with the exception of the consecutive sentence imposed upon defendant Baker on the firearm charge under N.J.S.A. 2C:39-7(b)(1). We remand to the trial court for reconsideration of that portion of the sentence.
On June 1, 2006, the Ocean County grand jury returned Indictment No. 06-05-0869, in which all three defendants were charged with: (1) first-degree murder, N.J.S.A. 2C:11-3 (count one); and (2) first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3 and 2C:5-2 (count two). Baker was charged separately with: second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a firearm by certain persons, 2C:39-7(b)(1) (count five).
Daniel Thomas was also charged in counts one and two. However, Thomas entered into a pre-trial plea agreement by which he pled guilty to third-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b),*fn2 and agreed to testify truthfully against defendants at trial. The State agreed to recommend a probationary sentence.
The judge conducted a pre-trial Wade*fn3 hearing regarding outof-court photographic identifications of defendants Baker and Russell. He issued a written decision admitting the identifications at trial. On the same date, the judge issued a separate written opinion and order granting defendants' motions to preclude evidence of their "street names" at trial. We granted the State's motion for leave to appeal the interlocutory order and reversed.
The evidence at trial revealed that at approximately 4:00 p.m. on February 7, 2006, Jason Vega arrived at the Man, Woman and Child Barbershop in Lakewood. Vega's brother, Ramon, and Vega's friends, Christian Vivar Grandados and Olivares, known as "Hefe," were already there. Jose Silva was one of the barbers at the shop that day.
Vega wanted to buy some CDs that were in a backroom of the barbershop. He walked through another room where approximately nine people were gathered, stopping briefly to say hello. Baker, who was known as "Respect," was playing chess with another person when he began "mocking" Vega. Vega ignored Baker's "mocking" until he heard Baker say to someone on the phone, "Jason Vega and his boys are plotting on me." Not knowing to whom Baker was speaking, Vega was upset and thought he was going to "have to . . . watch [his] back." Vega challenged Baker to a fight "and he accepted." Vega "asked him to step outside . . . to settle it[,] basically, fistfight." James Bellamy, a defense witness who was in the shop with his wife Nakisha at the time, claimed, however, that Baker was not involved in any arguments or confrontations.
According to Vega, after Baker accepted the challenge, Baker asked someone if Hefe was in the shop. When told he was, Baker ran out the back door. Vega waited for Baker in front of the barbershop for approximately fifteen minutes and then left.
Shortly after this confrontation, Granados saw Russell, whom he knew as "Gotti," and Scott, who was known as "High-Five," enter the barber shop and walk to the back. They stayed in the store for a couple of minutes before leaving.
Silva was arranging his barber station when he saw Baker, who he knew as a regular customer, come in with two other men. When the men entered, Olivares was seated, but, as he stood up from his chair, Baker shot him six times. Silva described the gun as gray, with a black handle, and as looking like a 9 mm. Silva could not identify the two men with Baker.
Granados was getting his hair cut when he saw Baker, Russell, and Scott walk into the shop. He heard Baker say, "Where's that nigger that have a beef with me?" Olivares stood up, said, "What's up?," and Baker shot him. Granados explained that during the shooting, Russell stood on Baker's left and Scott on his right. Both men had their hands crossed in front of them, kept a straight face, and did not appear upset or surprised.
Alexander Truyenque testified that around 4:30 p.m. he saw "three men walk in the barber shop and shoot somebody". The three were African-American, and the one "in the middle took out a weapon and fired several shots at the victim" who was sitting in the corner. Truyenque heard a conversation between the shooter and Olivares before the shots were fired. When shown a photographic array that included Russell's photo, Truyenque stated that the photograph "look[ed] like" one of the men who stood by the shooter.
Ramon, who was fifteen years old at the time of the shooting, similarly testified that three men entered the barbershop and one shot Olivares as the other two stood on either side. After the shooting, all three men ran from the barbershop. Ramon raced outside to see a silver four-door car, possibly a Toyota, fleeing the scene. Silva and Granados each called 9-1-1 from outside the barbershop.
When emergency responders arrived, Olivares was still alive but in grave condition. He died shortly thereafter. The autopsy revealed a total of five entrance wounds caused by bullets discharged from a gun more than twelve inches away. Six shell casings were recovered from the floor of the barbershop. All six casings "were discharged from the same firearm," a 9mm Luger.
Thomas testified that he spent the morning of the day of the shooting in Freehold with Scott, his cousin. Later in the day, Thomas received a call from Baker saying that Vega and Olivares were "trying to get at him at the barber shop". Baker asked Thomas to come to the barber shop, but Thomas went to Baker's home first. In the meantime, Thomas received a call from Russell, who said he was at the barber shop but Baker was not there.
Thomas left for the shop, thinking he "was gonna . . . fight". Thomas knew that Baker and Olivares were "beefing" but believed Baker could handle Olivares on his own. Thomas went to the barbershop "in case someone from [Olivares's] group" got involved. When Thomas arrived, he saw Vega leaving and a silver Toyota Corolla parked outside. As he entered, Thomas saw that one of the barbers looked scared. Thomas "looked over to the corner . . . and . . . [saw] Respect, Gotti and High-Five. And then Respect started . . . shooting into the . . . corner."
Thomas ran out of the barber shop.
As Thomas left, Baker called and asked where he was going. Thomas looked back and saw Baker holding the gun and all three defendants gathered around the Corolla. Thomas ran to a nearby restaurant where he met a friend who drove Thomas to his cousin's house in Freehold.
About twenty-five minutes later, Thomas received a call from Baker. Baker asked Thomas to come and get the gun, but Thomas refused. While still on the phone, the three defendants and a "Mexican dude from the barber shop" arrived in the Corolla, with Russell driving. Thomas asked Baker: "[W]hat the fuck happened and shit? And he was, like, man, I deaded the nigger. You know what I mean? . . . He said he deaded him, smoked him. . . . Killed him. Hefe and shit." Baker told Thomas that he needed to "get out of [t]here," shook his hand, and left. Thomas later learned from Russell that he drove Baker to Baltimore.
Robert Schillaci testified that on the day of the shooting, Russell called him at 7:00 a.m. and asked him to rent a car because Russell did not have a credit card. Schillaci went to Just Four Wheels in Lakewood, where he rented a silver Toyota Corolla, drove it to Russell at a housing complex and left the car with him. The next day, Russell called Schillaci and "said the car was too small. He wanted to get another one." Schillaci picked up the Corolla, returned it to Just Four Wheels and rented a white Toyota Camry for Russell.
Yehuda Dubovick, the manager of Just Four Wheels, testified that the Corolla had been driven a total of 381 miles between February 7 and February 8. When it was returned, his employees cleaned and vacuumed the car. Nonetheless, investigators found cigar tubes in the front passenger door compartment of the Corolla and were able to lift a fingerprint from one of them. The print was a positive match to Scott. Another print lifted from the driver's side door positively matched Russell.
An arrest warrant was issued for Baker on the day of the shooting, and for Scott two days later. On February 28, 2007, investigators traveled to Las Vegas, Nevada, where United States Marshals had apprehended Scott and Baker at the home of Baker's cousin.
Scott testified in his own defense. He was with Thomas on the day of the shooting but left him in Freehold and returned to Lakewood by bus at approximately 6:00 p.m. Scott claimed he heard about the murder for the first time the next morning when Thomas called him. Scott admitted going to Las Vegas with Baker about a week after the shooting. He knew Baker was wanted for murder, but went with him because Baker "swore on his kids that he didn't do it".
Other defense witnesses were called to impeach the credibility of Thomas or other State's witnesses. Tahir Parish, whose sister had three children with Thomas, testified Thomas told him "that he was not guilty of anything[,]" "had no knowledge of what was going on" and "the men on trial [we]re not guilty." Thomas also told Parish "he would do anything to get out of jail." Parish claimed that Thomas was with him in Freehold when they heard about the shooting.
Fourteen-year old Armando Sampayo was sitting next to Olivares as he was shot. He was unable to identify any of the defendants. Angelo Restrepo was also in the barbershop when Olivares was shot by two men; he could not identify any of the defendants. Jose Gonzales only saw one person enter the shop and also was unable to identify that person. Paul Miller claimed he was outside the shop talking to Silva when the shooting occurred. He denied seeing a silver car in front of the shop.
We first consider those issues regarding events that occurred prior to any testimony being adduced before the jury.
Baker and Russell contend that their due process rights were violated by the admission of out-of-court identifications. We find no error.
Greg Staffordsmith, the lead detective on the case from the Lakewood police department, testified at the Wade hearing that he compiled the photo arrays which were shown to the witnesses, but other officers conducted the actual procedures. Staffordsmith searched for other photos to include in the array by using a database which allowed him to locate individuals who shared similar characteristics with defendants.
Silva, Granados, and Nakisha Bellamy viewed photo arrays that contained Baker's photo in the third position. The officer who showed the array to Bellamy admitted that he knew Baker was a suspect. All of the officers chosen to administer the arrays utilized the same procedure in conducting the out-of-court identification with each witness, covering the names and numbers under each picture, placing one photo at a time in front of the witness, continuing through the photos even after an identification was made and confirming the identification, often with a second viewing of the array. All of the officers who testified at the Wade hearing denied doing anything to suggest to the witnesses which photo to choose.
Silva and Granados were certain in their identification of Baker as the shooter. Bellamy simply nodded and selected Baker's photo. She did not testify, and the State did not seek to admit evidence of her out-of-court identification, at trial.
Staffordsmith testified to similar procedures regarding the photo arrays containing Russell's photo that were shown to Granados and Truyenque. Russell's photo was in the fifth position, and Staffordsmith acknowledged that Russell's face appeared larger in his photo than did the faces in three of the other five photos in the array. Granados identified Russell's photo by saying, "He was there, he was one of them". Truyenque was less certain, saying only, "It looks like him".
In his written decision, the judge concluded that "the format of the photographs in the array and the procedure used . . . were in accordance with New Jersey laws and guidelines." With respect to the size differences between the photographs included in the Russell arrays, the judge concluded that "slight alteration[s] in picture size . . . are not impermissibly suggestive". The judge also noted that in State v. Delgado, 188 N.J. 48, 63 (2006), the Court determined that law enforcement officers are now required "to make and maintain a written record detailing the identification procedure". However, the judge observed that Delgado was decided five months after the murder, and that the police compiled a sufficient written record of the procedures utilized which did "not indicate any impermissible suggestiveness." With respect to the location of the defendants' photos in the arrays, the judge stated:
Arguably, the alleged suspect[']s picture should be in a different space every time the line up is presented to a witness in order to diminish any impermissible suggestiveness, however, since each witness viewed the photo arrays individually there is no indication of impermissible suggestiveness because no witness knew of another witness['s] choice of photograph.
Before us, Baker and Russell contend the procedures were impermissibly suggestive for the same reasons they advanced in the trial court. Baker argues the officers who administered the arrays knew him as "Respect," and, even if they were not involved in the investigation of the homicide, they knew he was a suspect based on police broadcasts at the time of the shooting. He also argues that by placing his photo in the same spot in each array, the procedure was impermissibly suggestive. Russell argues that the procedures as to him were impermissibly suggestive because of the size of the photo used which was also kept in the same position.
These arguments lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge in his written opinion.*fn4
All defendants argue that the State's use of a peremptory challenge to remove an African-American juror denied them a fair trial. Baker also complains about the peremptory challenge of a Puerto Rican juror and the judge's decision to excuse another African-American juror for cause. We find the arguments unpersuasive.
Peremptory challenges may not be used to exclude jurors solely for a racially discriminatory reason. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 82-83 (1986); State v. Gilmore, 103 N.J. 508, 529 (1986). "[T]he ultimate burden of persuading the trial court that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds remains at all times with the defendant." Gilmore, supra, 103 N.J. at 534. The prosecution is entitled to a rebuttable presumption that the challenges were exercised in a constitutionally-permissible fashion. Id. at 534-35.
As the Court explained in State v. Osorio, 199 N.J. 486, 492 (2009), a defendant asserting such a claim must "tender sufficient proofs to raise an inference of discrimination." Where a prima facie showing is made, "[t]he burden shifts to the prosecution to come forward with evidence that the peremptory challenge under review [is] justifiable on the basis of concerns about situation-specific bias." Gilmore, supra, 103 N.J. at 537. Finally, the trial court must examine the defendant's prima facie showing in light of the prosecution's rebuttal "to determine whether the defendant has carried the ultimate burden of proving, by a preponderance of the evidence, that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias." Id. at 539.
Here, prior to exercising a peremptory challenge to remove juror number ten, an African-American woman, the prosecutor requested a sidebar to place his reasons on the record in order to "dispel any notions of racism". He explained that the juror was young and not particularly responsive during the voir dire. The prosecutor additionally observed the juror making prolonged eye contact with defendant Scott. All three defendants objected.
The judge noted there were "three, possibly four" African-American jurors in the venire, and "three had reasons . . . they could not serve . . . ." He found that the State was not removing juror ten "based on any race and there's no pattern established." The judge permitted the exercise of the challenge and juror ten was excused.
Defendants argue the State's use of a peremptory challenge to excuse juror ten was not based upon any "case-specific, race-neutral reason." We find the arguments to lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). In short, defendants failed to "tender sufficient proofs to raise an inference of discrimination." Osorio, supra, 199 N.J. at 492.
Baker alone takes issue with the exclusion of two other female jurors. The record is somewhat unclear as to the races of these two jurors, although both Baker's counsel and the State referred to juror number five, who was removed for cause by the judge, as Hispanic, and Baker's counsel referred to juror number twelve, who was removed by the State via a peremptory challenge, as "100 percent Puerto Rican." However, Baker failed to object to the removal of juror number twelve before the jury was sworn. Consequently, his argument is not cognizable on appeal. Gilmore, supra, 103 N.J. at 535.
Finally, Baker's objection as to the State's peremptory challenge with respect to juror number five is similarly without merit. This juror was removed for cause in light of possible conflicts arising from her job with the Lakewood Housing Authority and her relationships with potential witnesses. "Trial courts possess considerable discretion in determining the qualifications of prospective jurors," and "removal of a prospective juror for cause will not be reversed unless the court has abused its discretion." State v. DiFrisco, 137 N.J. 434, 459 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); see also State v. Mance, 300 N.J. Super. 37, 54 (App. Div. 1997)("A trial court exercises its discretion when it voir dires a jury, and the exercise of that discretion is subject to reversal only if defendant meets the burden of showing prejudice."). The judge did not mistakenly exercise his discretion in removing the juror for cause.
In his written decision on defendants' pre-trial motions in limine to bar the use of street names, the judge concluded that "[t]he nicknames 'Gotti' and 'Pop-Off' amount[ed] to pejorative nicknames that should be kept from the jury . . . while the nicknames 'Respect', 'High-Five' and 'Hefe' do not constitute pejorative nicknames but should still be kept from the jury . . . ." The judge further observed that nicknames "are commonly used by gangs" and "could lead [the jury] to conclude that the defendants are guilty for the simple reason that if you have a street name you are affiliated with a gang and therefore have a tendency to commit violent acts."
After granting the State's motion for interlocutory review, a panel of our colleagues concurred with the judge's conclusions that the names "Gotti" and "Pop-Off' "have sinister connotations," that "Respect" could, depending on context, but "Hefe" and "High-Five" were not pejorative. Nevertheless, the panel explained, "[a]lthough we recognize that prejudice may arise from the use of nicknames with sinister connotations, we cannot endorse the confounding of the State's presentation of evidence by requiring redaction of these nicknames from statements, audiotapes and testimony", "particularly in those circumstances where it is alleged the witness only knew a particular defendant by a particular nickname."
On the first day of trial, the court provided the following instruction, to which all counsel agreed, to the jury:
Before I ask the State to call their first witness, ladies and gentlemen of the jury, throughout this trial you will hear references to nicknames allegedly possessed by the defendants, the victim, and witnesses in regards to identification evidence. These nicknames do not constitute evidence of guilt or propensity to engage in criminal conduct.
All defendants contend that our colleagues erred in reversing the trial judge's decision to bar the use of street names.
In State v. Vujosevic, 198 N.J. Super. 435, 447 (App. Div.), certif. denied, 101 N.J. 247 (1985), we held that where "the application for leave to appeal allowed us to consider the merits of the appeal on the papers submitted . . . [and] defendant was free to present any argument in support of the result reached in the trial court," our earlier decision is considered law of the case in future appeals. Accord State v. Myers, 239 N.J. Super. 158, 164 (App. Div.), certif. denied, 127 N.J. 323 (1990). Defendants concede that the law of the case doctrine applies. Nonetheless, they have raised the argument to preserve their right to seek further review by the Supreme Court.
Parenthetically, we fully agree with the decision reached by our colleagues and the argument provides no basis for reversal.
We next consider those issues that arose during the trial itself.
All three defendants argue that the judge erred by denying their motions for a mistrial made after comments in the prosecutor's opening statement and made again during Thomas's testimony which, they argue, violated a prior court order. This is how the issue arose.
In his opening statement, the prosecutor stated:
Witnesses are human beings. I don't apologize for them, we don't choose witnesses, we don't script our cases out, trial is not an exact science, and our witnesses, most of the time, do not choose to be witnesses. Many of the people that were in that barbershop are not happy about what they saw. Some of them might be reluctant to acknowledge what they saw. So you're going to hear witnesses, some of whom are going to acknowledge exactly what they saw to the best of their ability. Some of them you might expect to have seen more or seen something, and they say they didn't see something. I'll leave it to you to consider what the basis for that is, but keep it in mind. Witnesses are humans and they make mistakes. If there's discrepancies in their testimony, and I don't know if there will be, you have to decide is it something that matters or is it something that is not that big a deal. That's your job as jurors and I know you'll do a good job at it.
The judge denied defendants' motions for a mistrial. None of the defendants asked for a curative instruction.
The court conducted a Rule 104 hearing before Thomas testified. In his initial statement given to authorities in April 2007, Thomas claimed he did not see the shooting. In a later statement given just before trial, Thomas told investigators that Baker fired the fatal shots. Thomas explained that his parents' home and car had been sprayed with gunfire while his brother, who resembled him, was outside. Thomas believed that his initial refusal to identify defendants would keep his family safe from retaliation, but "it still happened". The prosecutor explained to Thomas that he could tell the jury he was afraid, but he could not specifically reference any incidents of retaliation. The judge approved and found that Thomas fully understood this limitation.
On cross-examination in front of the jury, Baker's attorney cross-examined Thomas about his inconsistent statements:
Q: [Y]ou didn't tell [the police] about seeing the actual shooter because you thought that you'd be protecting yourself and your family, correct?
A: Yes, I thought that . . . if I would have said that then I thought retaliation would be taken against my family.
Q: You also said that . . . you didn't tell the police about seeing the actual shooting because you thought they'd go easier on you; isn't that a fact? Isn't that what you said?
A: On my family. I thought no retaliation would be taken against my family. You know what I'm saying?
It wasn't . . . the prosecution going easy. I wasn't worried about that. Like I said, I was worrying about retaliation against my family. I got four sisters, like I said. I got kids. You know what I'm saying? And like I said, that shit already happened. I'm sorry. Like, the retaliation already happened.
Defendants moved for a mistrial. The prosecutor argued that Baker opened the door for the testimony, or invited the error, by repeatedly questioning Thomas on the inconsistency in his statements. The judge denied the requests for a mistrial, deciding instead to strike Thomas's response from the record. He informed the jury:
The Court will be striking the witness'[s] last response on the record. And the Court will indicate that there is no evidence that these defendants are involved in any retaliation against this witness. And [that] should not be considered whatsoever in this trial. And that's the Court's ruling.
The Court's recent statements in State v. Yough, 208 N.J. 385, 397-98 (2011), guide our review:
Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters "peculiarly within the competence of the trial judge." [State v. Winter, 96 N.J. 640, 646-47 (1984)]. The grant of a mistrial is an extraordinary remedy to be exercised only when necessary "to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997). For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a "clear showing" that "the defendant suffered actual harm" or that the court otherwise "abused its discretion." State v. Labrutto, 114 N.J. 187, 207 (1989). Furthermore, when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was "clearly capable of producing an unjust result." See R. 2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002). [(parallel citations omitted).]
Applying these standards to the facts at hand, it is clear that reversal is not warranted.
We find nothing in the prosecutor's opening remarks that requires reversal. Even if the comments were improper, they were brief, multiple openings by defense counsel followed, the trial was quite lengthy, and the judge's final instructions reminded the jurors that any comments by the attorneys were not evidence. See State v. Echols, 199 N.J. 344, 361 (2009) (concluding prosecutor's comments did not require reversal for similar reasons). We reject Baker's additional argument that reversal is required because the judge failed to give a limiting instruction since none was sought. R. 2:10-2.
As to Thomas's testimony, the judge gave an immediate and clear instruction to the jury, which we presume it followed.
State v. Winder, 200 N.J. 231, 256 (2009). In his final charge, the judge reminded the jury not to consider any evidence he had stricken from the record. The trial judge's denial of defendants' mistrial requests was not a mistaken exercise of his discretion.
Russell also argues that the jurors could have connected Thomas's testimony with the court's dismissal of juror number sixteen two weeks earlier during trial. Juror sixteen was dismissed following his admission that he read a newspaper article about a shooting in Lakewood where the victim was the mother of a witness's girlfriend. However, while the other jurors were aware that juror sixteen had violated the court's prohibition against reading newspapers during the trial, he testified that he did not reveal the contents of the article to the other jurors, and there is no evidence to support Russell's contention that the jurors would have connected Thomas's testimony with the juror's dismissal, particularly because the testimony lacked any reference to recent events.
Lastly, Russell and Scott argue that the cumulative effect of the prosecutor's comments and Thomas's testimony required a mistrial. In between the prosecutor's opening statement and Thomas's testimony, the jury heard defendants' three opening statements and the testimony of numerous witnesses. The brevity of each statement, in conjunction with the extensive time between them, makes it unlikely the jury connected the two.
Russell and Scott contend that the judge committed reversible error by permitting Granados to testify regarding their facial expressions when Baker shot Olivares, and to opine that neither appeared surprised or upset.
"The admissibility of opinion evidence rests within the discretion of the trial court," and is reviewed for abuse of discretion. LaBrutto, supra, 114 N.J. at 197. A lay witness may opine as to matters arising from common knowledge or observation. State v. Bealor, 187 N.J. 574, 586 (2006). In accordance with N.J.R.E. 701, a lay witness's "testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." However, it is required that the "witness . . . have actual knowledge, acquired through his or her senses, of the matter to which he or she testifies." LaBrutto, supra, 114 N.J. at 197.
Here, Granados made personal observations at the time of the shooting upon which he based his opinion that neither defendant appeared surprised or upset when Baker fired.
Contrary to defendants' assertions, Granados need not have known defendants beforehand to form such an opinion. Moreover, Russell and Scott's appearance was relevant to a "fact in issue," N.J.R.E. 701(b), that is, whether they were accomplices of Baker or merely present at the shooting.
Baker contends that the judge erred by denying his motion to preclude the playing of a recording of the 9-1-1 call Granados made on the day of the shooting. Baker argues that the prejudicial effect of the evidence substantially outweighed its probative value. N.J.R.E. 403.
Our standard of review requires us to give substantial deference to the trial judge's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998), certif. denied, 532 U.S. 931, 12 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). "The mere possibility that evidence could be prejudicial does not justify its exclusion." Id. at 453-54. In the 9-1-1 call, Granados told the police that Olivares was shot by "some black kid. They call him Respect . . . . His name is Tyleek." It was clearly relevant to Baker's identification as the shooter. Although playing the tape was cumulative since Granados testified before the jury regarding the call and his identification of Baker, we cannot conclude that its admission was harmful error.
Baker and Russell contend that the judge should have granted their mistrial requests because of an alleged pattern of untimely discovery furnished by the State. Defendants claim the State failed to advise that Thomas changed his prior statement until the day he testified, and failed to give proper notice that Granados, Truyenque, and Silva also changed their statements. Defendants contend they were unable to adequately prepare their defenses. Russell also contends for the first time on appeal that Baker's trial counsel engaged in misconduct that denied him a fair trial.
These arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add only the following.
Thomas testified on October 28, 2008. On October 17, when the State became aware that Thomas had now identified Baker as the shooter, it recorded a new videotaped statement and supplemental investigative report which was faxed to all defense counsel. On the following Monday, DVD copies of Thomas's statement were provided to defense counsel. Prior to permitting Thomas to testify, the judge conducted a Rule 104 hearing out of the jury's presence at defense counsel's request. Defendants were fully able to cross-examine Thomas during this hearing. They were not prejudiced. See State v. Bellamy, 329 N.J. Super. 371, 376 (App. Div. 2000) (noting the discovery rules exist because a "defendant is entitled to know the State's case against him within reasonable time to permit the preparation of a defense").
As to Granados and Truyenque, one month before they testified, the prosecutor provided information regarding changes from their original statements. The alleged inconsistency between Silva's prior statement and his testimony at trial arose during direct examination, and the prosecutor represented he was unaware of it until the testimony was actually received. Defendants were fully able to prepare their defenses and were not prejudiced by any of these events.
As to allegations of Baker's counsel's misconduct, we note that no objection was made below, and, indeed, both co-counsel frequently joined in motions and applications made by Baker's counsel that now form the bases for allegations of misconduct. In any event, our review of the record convinces us that Baker's counsel's conduct did not divert the jury from its obligation to fairly consider the evidence against each defendant, something that the judge emphasized in his final instructions.
At the charge conference, Baker objected to the State's request for a flight charge, arguing there was a lack of evidence that he knew a warrant for his arrest had been issued when he left New Jersey. However, in deciding the flight charge was appropriate, the judge reasoned Scott testified that he was aware Baker was wanted because it "was all over the papers," he and Baker communicated with each other and they were both arrested together in Las Vegas.
"A jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." State v. Mann, 132 N.J. 410, 419 (1993). However, mere departure is distinguishable from "flight."
For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt. [State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966).]
As the Court recently said, "[E]vidence of flight is probative if the flight is accompanied by an intent to avoid detection or apprehension." State v. Ingram, 196 N.J. 23, 46 (2009).
"[D]eparture to avoid detection or apprehension" is "[t]he logically required tipping point." Id. at 47.
The propriety of admitting the evidence and delivering the instruction "depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged." [State v. Latney, 415 N.J. Super. 169, 176 (App. Div. 2010) (emphasis omitted) (quoting Mann, supra, 132 N.J. at 420).]
Whether there is sufficient evidence in the record to support a flight charge is a decision left to the trial judge's discretion. State v. Long, 119 N.J. 439, 499 (1990).
The evidence adduced at trial disclosed that, following the shooting, Baker ran from the barber shop and sped away in Russell's rented car. Later that day, Russell drove Baker to Baltimore. On the day of the shooting, an arrest warrant was issued for Baker. About one week later, Baker and Scott traveled to Las Vegas, where they stayed with Baker's cousin until their apprehension. The evidence supported the flight charge.
During the first day of deliberations, the jury requested transcripts of the testimony of Silva, Granados, Miller and Thomas. After confirming that the jury wanted transcripts of the entire testimony, and redacting some of Thomas's testimony based on his prior rulings, the judge provided the transcripts to the jury. Defendants lodged a minor objection to a portion of Thomas's testimony but did not object to the procedure.
All three defendants now contend that their right to a fair trial was violated because the jury was allowed to review the transcripts in the jury room and outside defendants' presence. We review the argument utilizing the plain error standard. R. 2:10-2.
In State v. Brown, 362 N.J. Super. 180, 181 (App. Div. 2003), the jurors requested a readback of the victim's testimony. The judge directed the court reporter to read back the testimony to the jurors in the jury room, permitting the prosecutor and defense counsel, but not the defendant, to be present. Id. at 184. In reversing defendant's conviction, we held that "criminal defendants have the right to be present at all critical stages of the trial," including the readback of testimony. Id. at 188.
Defendants equate the jury's review of transcripts in this case with the readback of testimony in Brown. However, in Brown, we noted "[s]everal pitfalls" in the judge's procedure, including her ex parte, off-the-record communications with the jury, her decision to allow note-taking despite an earlier instruction that it was prohibited, and the judge's failure to record the readback. Id. at 185-87. Finally, we noted that "[d]uring the course of readbacks, events commonly occur which require the presence of a presiding judge." Id. at 187. This case presented no such concerns because the jury was presented solely with the trial transcripts already reviewed and redacted by the judge and the attorneys.
Although no reported New Jersey case has addressed this issue squarely, several federal cases have held that providing the jury with transcripts of trial testimony does not constitute an abuse of discretion. See U.S. v. Bertoli, 40 F.3d 1384, 1399-1401 (3rd Cir. 1994); U.S. v. Lujan, 936 F.2d 406, 411-12 (9th Cir. 1991); U.S. v. Betancourt, 838 F.2d 168, 175 (6th Cir.) ("the furnishing of transcripts to a jury is generally well within the district court's discretion"), cert. denied, 486 U.S. 1013, 108 S. Ct. 1748, 100 L. Ed. 2d 210 (1988).
We recognize that these cases do not address the issue in the context of a defendant's right to be present at all critical stages of the trial. See Brown, supra, 362 N.J. Super. at 189.
Nevertheless, as we noted in Brown, defendant's presence at the readback was required "to assure that the procedure [was] correctly conducted." Ibid. In this case, defendants were presented with an adequate opportunity to urge the redaction of certain portions of the transcripts, actively participated in and assented to a procedure that required no further monitoring by the judge and counsel. We find no basis for reversal.*fn5
Scott argues that the judge erred in denying his motion for judgment notwithstanding the verdict (JNOV) because the State failed to present sufficient evidence beyond a reasonable doubt of his guilt as a co-conspirator or accomplice of Baker. Russell argues that the judge erred by denying his motion for a new trial on the ground that the verdict was against the weight of the evidence.
A JNOV motion is governed by Rule 3:18-2, and "[t]he standard for resolving a motion brought under [that] rule is the same" as that governing a motion seeking a judgment of acquittal under Rule 3:18-1. State v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011). We conduct our review de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Josephs, 174 N.J. 44, 80 (2002) (quoting State v. Reyes, 50 N.J. 454, 459 (1967) (parallel citations omitted).]
A motion for a new trial is subject to the discretion of the trial judge. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Therefore, on appeal, Our scope of review is limited to a determination of "whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record." Moreover, we will "give deference to the trial judge's feel for the case since he presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified." [State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004) (alteration in original) (quoting Russo, supra, 333 N.J. Super. at 137).]
The trial judge's ruling on a motion for a new trial based upon insufficient evidence "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law."
To be guilty as an accomplice, a defendant must "act with a purposeful state of mind in furtherance of the crime." State v. Whitaker, 200 N.J. 444, 457 (2009). Knowledge alone "does not make one an accomplice." Id. at 458. The defendant "must not only share the same intent as the principal who commits the crime, but also must 'at least indirectly participate in the commission of the criminal act.'" Id. at 459 (alteration in original) (quoting State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993)).
"[T]he agreement to commit a specific crime is at the heart of a conspiracy charge." State v. Samuels, 189 N.J. 236, 245 (2007). "[M]ere knowledge, acquiescence, or approval of the substantive offense, without an agreement to cooperate, is not enough to establish one as a participant in a conspiracy." State v. Abrams, 256 N.J. Super. 390, 401 (App. Div.), certif. denied, 130 N.J. 395 (1992). In other words, "[t]here must be intentional participation in the activity with a goal of furthering the common purpose." Ibid. However, "[b]ecause the conduct and words of co-conspirators [are] generally shrouded in 'silence, furtiveness and secrecy,' the conspiracy may be proven circumstantially." Samuels, supra, 189 N.J. at 246 (quoting State v. Phelps, 96 N.J. 500, 509 (1984)).
In this case, we reject defendants' contentions that the evidence was insufficient to find beyond a reasonable doubt that they conspired with Baker to kill Olivares and acted as his accomplices. Russell was not simply present at the barber shop when the murder occurred. After Baker and Vega had a confrontation, Baker left the barber shop. Russell and Scott entered the shop shortly before the murder, left, and re-entered with Baker. Vega testified that he believed Baker left intending to return with others for support. As Baker killed Olivares, Russell and Scott stood by his side, acting in a way that implied their foreknowledge of Baker's intention.
After the murder, Russell drove Baker and Scott to Freehold in a car Schillaci rented for the day at Russell's request. On the day after the homicide, Russell had Schillaci return the car for another. Scott fled to Las Vegas with Baker knowing that he was wanted for murder.
In short, the evidence was sufficient to find both Russell and Scott guilty beyond a reasonable doubt of conspiracy to commit murder and murder as accomplices of Baker. The judge did not err in denying their motions for JNOV and for a new trial.*fn6
Each defendant argues his sentence was excessive. In reviewing a "sentence challenged for excessiveness[,] [t]he reviewing court is expected to 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) (quoting State v. Roth, 95 N.J. 334, 364 (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). Applying these standards, we consider the challenges raised by each defendant.
Following the verdict, Baker pled guilty to count five, second-degree possession of a firearm by a convicted person. At sentencing, the judge merged the convictions on counts two, three and four into the first-degree murder conviction.
The judge found aggravating factors one ("[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner"); three ("[t]he risk that the defendant will commit another offense"); six ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and nine ("[t]he need for deterring the defendant and others from violating the law"). N.J.S.A. 2C:44-1(a)(1), (3), (6), and (9). He found no mitigating factors.
The judge sentenced Baker to life in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, i.e., a period of parole ineligibility of sixty-three years, eight months, and three days. On the certain persons weapons conviction, the judge sentenced Baker to a consecutive term of ten years with a five-year period of parole ineligibility.
Baker contends "that his [prior] convictions and the aggravating factors" found by the trial court "cannot support" imposition of "two sentences in excess of the statutorily authorized minimum base terms." He also argues that "his conviction on count five [does not] warrant a consecutive sentence."
We conclude the judge properly found the aggravating sentencing factors. He noted the "manner and circumstances of the offense," particularly that defendant killed Olivares in a barber shop crowded "with numerous customers including young people." The judge placed "heavy weight" on factor three in light of defendant's extensive criminal and substance abuse history, a total of eighteen adjudications of guilt for offenses and crimes including simple assault, drug possession and distribution, and weapons offenses. The judge also clearly stated the reasons supporting factors six and nine. We affirm the sentences imposed on the murder conviction and the weapons offense.
However, the judge failed to express any reasons whatsoever for imposing the consecutive sentence on count five. We therefore remand the matter for re-sentencing solely on this issue so that the judge may consider the factors set forth 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). Russell's Sentence
The judge merged Russell's conviction for conspiracy into the murder conviction. He also found the same four aggravating factors as he did in imposing sentence on Baker. The judge found no mitigating factors and sentenced Russell to life in prison, subject to an eighty-five percent period of parole disqualification under NERA.
Russell contends that the court erred by finding aggravating factor one because the crime was not committed in a particularly "cruel" manner. See, e.g., State v. O'Donnell, 117 N.J. 210, 217 (1989) (noting the infliction of pain or suffering upon the victim justifies a finding under aggravating factor one). Russell also contends that his limited role in the crime militates against finding factor one.
Here, the judge's findings regarding aggravating factor one, as noted above, were entirely justified. The judge placed heavy weight on factors three and six in light of Russell's "lengthy prior criminal history and his substance abuse history" that included sixteen adjudications of delinquency as a juvenile, and several adult convictions, including drug possession and distribution, and robbery.
Moreover, because Russell was convicted of murder as an accomplice to Baker, the jury found he "shared the same criminal intent to commit the substantive offense as the principal." State v. Whitaker, 402 N.J. Super. 495, 516 (App. Div. 2008), aff'd, 200 N.J. 444 (2009). Contrary to his assertions, as noted above, Russell did more than just stand next to Baker as he fatally shot Olivares. We find no error in the sentence imposed.
The judge merged the conviction for conspiracy into the conviction for murder and, incorporating the reasons stated in sentencing Baker, found aggravating factor one, and placed "heavy weight" on his finding of factors three and nine. He found no mitigating factors. The judge sentenced Scott to life in prison, subject to NERA.
Scott contends that imposition of the maximum term was unjustified because the murder "was no different than the overwhelming majority of other purposeful/knowing murders," and only one fatal wound was inflicted. He also argues that the judge erred by finding aggravating factor three because he had minimal prior contact with the justice system. Scott also contends that the trial court failed to identify two mitigating factors, neither of which were advanced by defense counsel: his youth, since he was twenty-years old when the crimes were committed, N.J.S.A. 2C:44-1(b)(13); and the hardship incarceration would bring to his child and the child's mother, N.J.S.A. 2C:44-1(b)(11). Lastly, Scott makes a similar argument to that made by Russell, i.e., that his involvement in the homicide was minimal.
We have already noted that the judge's finding regarding aggravating factor one was justified. The fact that only one of the bullet wounds was fatal is irrelevant. Cf. State v. Rivers, 252 N.J. Super. 142, 153 (App. Div. 1991) (trial court properly found factor one where the defendant shot at least one person intentionally). The findings as to factors three and nine were not based solely on Scott's juvenile record.
Mitigating factor thirteen applies when a "youthful defendant['s] [conduct] was substantially influenced by another person more mature than the defendant." N.J.S.A. 2C:44-1(b)(13). In State v. Torres, 313 N.J. Super. 129, 162-64 (App. Div.), certif. denied, 156 N.J. 425 (1998), we held that the trial judge did not abuse his discretion by refusing to find this mitigating factor applicable to a sixteen-year old defendant, particularly since the crime was premeditated and not the result of an impulsive or childish act. Such was the case here. With respect to mitigating factor eleven, Scott's pre-sentence report revealed that he did not live with his paramour or his child, nor were they dependent on him in any way. We also reject the argument that Scott's level of participation required a lesser sentence. In short, we find no basis to reverse the sentence imposed.
We address one final point. In his supplemental brief, Baker contends that his convictions should be reversed because the trial judge "was [his] juvenile prosecutor on one or more occasions, in which [he] was named as [a] defendant." Baker certifies that he brought this to the attention of his trial counsel who "informed [him] he'd spoken to the judge [and] the judge would be fair." Baker also certifies, and we take judicial notice of the fact, that his trial counsel, Paul W. Bergrin, is under federal indictment. Alternatively, Baker requests a limited remand to address this issue.
In State v. Tucker, 264 N.J. Super. 549, 553-55 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994), we held that recusal was mandatory where the trial judge, while an assistant prosecutor, had presented two cases involving the defendant to a grand jury. In State v. Kettles, 345 N.J. Super. 466, 468, 470-71 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002), despite the defendant's agreement to have the judge proceed with the trial, we reversed the defendant's conviction because the judge had presented matters involving the defendant to a grand jury as an assistant prosecutor. However, in State v. McNamara, 212 N.J. Super. 102, 102, 109 (App. Div. 1986), certif. denied, 108 N.J. 210 (1987), we held that reversal of the defendant's conviction was not required where the trial judge, the First Assistant Prosecutor of the county at the time the defendant's indictment was returned, had not personally prosecuted the defendant.
The record fails to reveal any discussion took place between defense counsel and the judge. Baker's certification is devoid of any particularized information demonstrating that the trial judge was in fact the prosecutor involved in any of his juvenile cases. Indeed, the certification provides no specific information as to the juvenile charges and when they were allegedly prosecuted.
The legitimacy of the issue Baker has belatedly raised cannot be determined on this record, and we therefore conclude it is more appropriately addressed in a petition for post-conviction relief. In that framework, defendant is free to raise the claim and supply additional documentation supporting same. Baker's allegation that he brought the information to his attorney's attention implicates issues of trial counsel's ineffective assistance. They are more appropriately addressed in the context of post-conviction relief.
The convictions of all three defendants are affirmed. As to the sentence imposed upon defendant Baker, we remand to the trial court for reconsideration solely as to the imposition of a consecutive term on count five; in all other respects we affirm the sentence imposed on defendant Baker and affirm the sentences imposed on the other defendants. We do not retain jurisdiction.