May 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEREMY WATSON, A/K/A JEREMY WARREN WATSON, A/K/A LITTLE FACE, A/K/A JERAMY WATSON, A/K/A JERMEY WATSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-08-0748.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 26, 2011
Before Judges Cuff, Lihotz and St. John.
A jury convicted defendant Jeremy Watson of first degree
purposeful/knowing murder, N.J.S.A. 2C:11-3a(1) and (2) (Count One);
first degree felony murder, N.J.S.A. 2C:11-3a(3) (Count
Two); first degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1
(Count Three); second degree aggravated assault (SBI), N.J.S.A.
2C:12-1b(1) (Count Four); first degree robbery, N.J.S.A. 2C:15-1
(Count Five); third degree unlawful possession of a weapon (a
handgun), N.J.S.A. 2C:39-5b (Count Six); second degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Seven); third
degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Eight); and
third degree possession of cocaine with intent to distribute,
N.J.S.A. 2C:35-5a(1) and
-5b(3) (Count Nine). The charges arise from the shooting of a man and
a woman in a park in Plainfield.
Judge Fasciale merged Counts Two and Seven with Count One, Count Four into Count Three, and Count Eight into Count Nine. He imposed a fifty-five year term of imprisonment subject to a No Early Release Act (NERA)*fn1 85% ineligibility term on Count One (murder), a consecutive seventeen-year term of imprisonment subject to NERA on Count Three (attempted murder), a concurrent seventeen-year term of imprisonment subject to NERA on Count Five (robbery), a concurrent five-year term of imprisonment on Count Six (unlawful possession of a handgun), and a consecutive five-year term of imprisonment on Count Nine (possession of cocaine with intent to distribute). Defendant is serving an aggregate term of seventy-seven years, seventy-two of which are subject to the NERA 85% ineligibility term. The appropriate fees, assessments and penalties were also imposed.
On March 24, 2006, Candice Baker lived with her boyfriend Michael Gregory in Dunellen. At that time, Baker and Gregory had known defendant Jeremy Watson for about a year. He was one of their crack cocaine suppliers. Usually, Baker or Gregory called defendant, who drove to their apartment with the drugs. Occasionally, they drove to his apartment on Leland Avenue in Plainfield. They would call defendant when they arrived and he would come to their car to deliver the drugs.
That day, defendant arrived at Baker and Gregory's apartment at 9:30 a.m. Gregory had arranged for defendant to deliver crack cocaine and to drive them to Newark to permit Gregory to pick up money from his union account. Gregory and Baker "took a hit" of crack, left the apartment with defendant, and entered a green Acura driven by defendant's cousin, Shariff. The foursome drove to Newark, where Gregory picked up his check. When he returned to the car, the foursome drove to Plainfield to cash the check. Defendant knew that Gregory intended to cash his check, at which time he would receive payment for the cocaine delivered that morning.
After Gregory cashed the check, Baker and Gregory shopped for boots for her and some clothing for him. Gregory also obtained a money order for Baker. They returned to the car, Gregory paid defendant for the drugs, and Shariff drove to a nearby convenience store to allow Baker to purchase cigarettes and phone cards for her phone. At this point Gregory had about $2400 in cash.
As they pulled away from the convenience store, Shariff stated he thought they would drive through the park. A minute or so after they entered the park, Shariff stopped the car and told Gregory and Baker to get out of the car. Defendant also left the car and "pulled out his gun." Defendant pointed the gun at Baker, then at Gregory. Shariff asked which one had the money. Baker stated that Gregory had the money. At trial, she described the following events:
And I know a shot was fired towards me, from [defendant]. And it missed me . . . I ducked, 'cause I got very scared. And I was looking ahead of me, and I seen him pointing it at [Gregory]. And [Gregory] was asking him, "please don't hurt us. I'll give you anything. Just take the money."
And he was throwing, like kind of throwing the money, but same time just giving it to him.
And that's when [defendant] started shooting him.
Baker estimated that defendant shot Gregory six or eight times.
During the shooting, Baker "was crouched down." When the shooting stopped, Baker looked up, saw defendant standing above her, and "then he looked at me in my eyes and he told me 'I'm sorry, but good-bye' and then he shot me twice in my head." Baker survived; Gregory died.
At approximately 10:27 a.m., police received calls reporting gunshots fired in Greenbrook Park in Plainfield. Four to five minutes later, police arrived at the scene and found both victims. Baker was bleeding profusely but told an officer that "Jeremy did this to me." Baker provided a description of defendant and the car he drove, and told the officer that he lived in Leland Gardens.
Police arrived at Leland Gardens within minutes. The apartment manager told them they could find defendant and his girlfriend in apartment 37A. As they approached the apartment, one of the six officers at the scene observed a window blind move, someone yelled "police," and a man behind the door informed them they needed a search warrant to enter. Hearing that someone was trying to leave the apartment by a rear window, police officers forced the front door and immediately subdued and arrested defendant. After he had been removed from the apartment, an officer returned, found Shariff in the bathroom and arrested him.
Shariff showed officers the garage where the green Acura was parked. By 12:15 p.m., defendant, Shariff, defendant's girlfriend and another woman had been arrested and removed from the apartment. Officers were also stationed at the entrance to the apartment and the garage pending receipt of search warrants.
On appeal, defendant raises the following arguments: Point 1 The warrantless entry into defendant's apartment was unlawful.
Point 2 Charging accomplice liability over defendant's objection infringed defendant's trial rights.
Point 3 The trial court improperly permitted hearsay evidence at trial.
Point 4 The trial court erred in permitting prior consistent statements into evidence during the State's case-in-chief.
Point 5 Defendant's sentence is improper and excessive.
Defendant argues that the forced entry into the apartment was unlawful because the police had not obtained a search warrant. The State responds that police had probable cause to believe that defendant had shot two people in the nearby park, had fled to the apartment, and that he was armed. These exigent circumstances warranted immediate action to locate and arrest defendant. Moreover, defendant has not identified any evidence obtained before issuance and execution of the search warrant.
The United States Supreme Court has recognized that police may enter a home to secure it while a search warrant is obtained, if they have probable cause and there is a probability that the suspect or the object of a search will disappear before a search warrant is secured. Segura v. United States, 468 U.S. 796, 810, 104 S. Ct. 3380, 3388, 82 L. Ed. 2d 599, 612 (1984). This State follows the same rule. State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974).
This court has enumerated relevant factors to be considered when determining whether exigent circumstances exist to justify a warrantless entry and search:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause, and (9) the time of the entry.
[State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990).]
Judge Triarsi held that the police had probable cause to believe that defendant had shot and killed one person and seriously wounded another. The surviving victim identified defendant by name, provided a physical description of the shooter, provided a description of the car, and informed police where he lived. Before arriving at the door of apartment 37A, the rental agent verified that defendant lived there with his girlfriend. Moreover, the police arrived at the apartment within minutes of the shooting. In other words, the police were "pursuing a potentially armed suspect with a gun."
We must defer to the factual findings of the trial judge "so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). We give particular deference to findings of fact influenced by the trial judge's "opportunity to hear and see the witnesses and to have the 'feel' of the case." Id. at 244 (internal quotation marks and citation omitted).
Here, the findings of fact are well-supported by the evidence adduced at the suppression motion evidentiary hearing. Those findings fully support the existence of exigent circumstances to enter the apartment to arrest defendant and Shariff, the driver of the green Acura. Police appeared at the park within minutes of a report of shots fired in the park and at the apartment within ten minutes of finding the two victims. Moreover, the record clearly supports that neither the apartment nor the car was searched prior to issuance of a search warrant. Defendant's argument that evidence was seized from the apartment and car after his arrest but before issuance of the search warrants is without any evidential support in the record.
Defendant also argues that Judge Fasciale, the trial judge, should not have charged the jury that defendant could be found guilty as a principal or as an accomplice. Defendant objected to the accomplice liability charge and contends on appeal that this charge interfered with his defense because he had to defend two theories of liability: one that he was the shooter and the other that he was the driver.
We review any jury charge alleged to contain error as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). In addition, the charge must be considered in light of the entire trial record. Ibid. If a defendant objects to a proposed charge, the trial judge may deliver that charge only if the facts "clearly indicate" that the proposed charge is appropriate. State v. Choice, 98 N.J. 295, 298 (1985).
"[A]n accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." State v. White, 98 N.J. 122, 129 (1984). To be found guilty under a theory of accomplice liability, the jury must find that defendant "shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act." State v. Fair, 45 N.J. 77, 95 (1965). See also State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993).
At trial, Baker offered somewhat inconsistent testimony regarding the identity of the driver. Her testimony did not vary, however, that the passenger, not the driver, was the shooter. As found by Judge Fasciale, the evidence clearly indicated that defendant could have acted as an accomplice to Shariff by acting as the driver or as the principal by shooting both victims and taking the cash carried by the victims. As such, an accomplice liability charge was clearly indicated.
We also reject the contention that the accomplice liability charge prejudiced the defense. Admittedly, a trial judge must refrain from interfering with a defendant's trial strategy. State v. Perry, 124 N.J. 128, 162-63 (1991). In Perry, the defendant argued he was not present at the scene of the murder and had not participated in the crime. Id. at 163. Therefore, the trial judge severely compromised the defense strategy when he administered a self-defense charge. Ibid. Unlike Perry, here, the accomplice liability charge did not contradict the defense strategy. Our review of the record demonstrates that the defense strategy was to highlight inconsistencies in the testimony to attack Baker's credibility, to highlight the lack of direct evidence adduced by the State, and to emphasize the absence of any motive to kill or injure the victims. The accomplice liability charge did not make conviction of a greater crime more likely, Choice, supra, 98 N.J. at 300, or force defense counsel to chose an alternate strategy, Perry, supra, 124 N.J. at 163.
Defendant argues that the trial judge improperly permitted responding police officers to relate statements made by Baker soon after police arrived in the park. In her statements to police, particularly Officer Mary Chosney, Baker identified defendant as the shooter, gave a physical description of him, and the address of his apartment. Defendant argues that this testimony was inadmissible hearsay. Judge Fasciale ruled that the statements satisfied various exceptions to the hearsay rule, including N.J.R.E. 803(c)(2) (excited utterance), N.J.R.E. 803(c)(1) (present sense impression), and N.J.R.E. 804(b)(2) (dying declaration).
Defendant's argument that these statements are inadmissible hearsay is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Defendant's argument fails to account for Baker's presence at trial. He had a full opportunity to cross-examine her on the events of the day, including her identification of defendant and her account of the events of the day.
Defendant's argument that the trial judge should not have permitted use of a prior consistent statement made by Baker during the State's case is also without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Finally, defendant contends that his sentence is excessive and improper. Judge Fasciale imposed a fifty-five year term of imprisonment subject to a NERA parole ineligibility term on Count One, the murder of Gregory, and a consecutive seventeen-year term of imprisonment subject to a NERA parole ineligibility term on Count Three, the attempted murder of Baker. Defendant argues that a consecutive term is improper because the offenses occurred during a single violent episode.*fn2 We disagree.
The consecutive term is completely consistent with the principles articulated in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Here, defendant shot two people, killing one and severely injuring another. A judge does not improperly exercise the considerable discretion reposed in him when he determines to impose consecutive terms when a single incident causes injury or death to more than one victim. State v. Carey, 168 N.J. 413, 430-31 (2001); State v. Molina, 168 N.J. 436, 442 (2001).
We also discern no error in the identification and weighing of aggravating factors. State v. Hudson, 209 N.J. 513, 528 (2012); State v. Roth, 95 N.J. 334, 364-66 (1984).