July 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
THEODORE GORDON HARRIS, A/K/A TEDDY HARRIS AND J.B. HARRIS, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2591.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012
Before Judges Reisner, Simonelli and Hayden.
In connection with the shooting death of his live-in girlfriend's son, Duwuan Potter, and the non-fatal shootings of the girlfriend, Dawn Potter, and an innocent bystander, George Williams, defendant Theodore Gordon Harris was convicted of these offenses: first-degree murder of Duwuan Potter, N.J.S.A. 2C:11-3 (count one); first-degree attempted murder of Dawn Potter, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); third-degree aggravated assault with a deadly weapon on George Williams, N.J.S.A. 2C:12-1b(2) (count three); third-degree aggravated assault by pointing a firearm at a law enforcement officer, Lorenzo Pettway, N.J.S.A. 2C:12-1b(9) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts five and nine); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count seven); second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(2) (count eight); second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1a (count ten); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1) (counts eleven and twelve).
Defendant was sentenced to a thirty-year term for murder, all to be served without parole; for attempted murder, a consecutive twenty-year sentence, eighty-five percent to be served without parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and two consecutive flat sentences of five years on the weapons-related offenses in counts three and ten. The remaining sentences were concurrent.*fn1
Defendant appeals from the conviction and the sentence, presenting the following points of argument for our consideration:
POINT I: THE PROSECUTOR'S CROSS-EXAMINATION AND COMMENTS REGARDING DEFENDANT'S DELAY IN CLAIMING SELF-DEFENSE WAS GROSSLY IMPROPER AND DENIED DEFENDANT A FAIR TRIAL.
POINT II: IT WAS ERROR FOR THE COURT TO REFUSE TO PERMIT ADMISSION OF CERTAIN STATEMENTS MADE BY DEFENDANT TO THE POLICE FOLLOWING HIS ARREST.
POINT III: SINCE NEITHER DEFENDANT NOR THE CO-OCCUPANT OF THE MOTEL ROOM WERE PROPERLY INFORMED OF THEIR RIGHT TO REFUSE TO CONSENT TO A SEARCH THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
POINT IV: THE TESTIMONY OF SGT. MEANY THAT DEFENDANT WAS NOT REMORSEFUL WAS IMPROPER EVIDENCE THAT DEPRIVED DEFENDANT [OF] A FAIR TRIAL. (Not Raised Below.)
POINT V: CERTAIN CONDUCT AND STATEMENTS BY THE PROSECUTOR CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DENIED DEFENDANT A FAIR TRIAL.
POINT VI: THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS BY THE TRIAL COURT'S PRECLUDING THE ADMISSION OF CERTAIN EVIDENCE.
POINT VII: THE ADMISSION OF THE VHS TAPE AND TRANSCRIPT OF DEFENDANT'S STATEMENT TO THE POLICE IN THE STATE'S REBUTTAL CASE WAS ERROR.
POINT VIII: THE AGGREGATE SENTENCE IMPOSED UPON DEFENDANT OF 60 YEARS WITH 30 YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not Raised Below.)
POINT IX: THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below.)
In a supplemental pro se brief, defendant offers additional contentions "expanding the arguments made on Points III and IX" in his attorney's brief.
The State cross-appeals from the trial court's failure to impose what it contends are mandatory three-year periods of parole ineligibility under N.J.S.A. 2C:43-6c (the Graves Act), on counts three, four and ten. The trial court had imposed flat five-year sentences for each of those counts. Defendant did not oppose the State's cross-appeal.
Having reviewed the entire record presented to us, including all of the transcripts, we affirm the conviction. We also affirm the sentence, except for counts three, four, and ten, as to which we agree with the State's cross-appeal. We therefore remand this matter to the trial court for re-sentencing. We express no view as to whether, on remand, the court should re-impose the original sentence, plus six additional consecutive years of parole ineligibility and one concurrent three-year parole bar, or whether the court should exercise its discretion to structure the sentence differently so as to more closely resemble the original aggregate term.
To summarize the relevant trial evidence, in 2006, defendant, who was twenty-four years old, was living with his forty-year-old paramour Dawn Potter, and her son Duwuan, who was close in age to defendant. The three of them lived in a row house in Camden. Defendant was unemployed, and Dawn was supporting him. Around May 2006, defendant began an affair with Ashley Louviere, a young woman who lived in the row house next door.*fn2 According to defendant's trial testimony, after Dawn discovered the affair there was considerable tension in the household, and Duwuan made repeated threats to hurt or shoot him.
On the morning of July 19, 2006, while Dawn was at work, defendant stole one hundred dollars from her dresser drawer and went to Asbury Park with Ashley. Dawn claimed that was the extent of the theft. However, according to defendant, before he left the house, he also stole Duwuan's drug stash, and about $2000 and two guns belonging to Duwuan. Defendant testified that his relationship with Dawn and Duwuan had become contentious and hostile, and he intended to sell the drugs and use the proceeds, plus the stolen cash, to start a new life with Ashley.
On the evening of July 19, Dawn and Duwuan went to Asbury Park in search of defendant. According to Dawn, they knew defendant used to live in Asbury Park and thought he might have returned there. She testified that she was hurt that defendant stole her money but she also loved him and wanted him to come home. Soon after they got off the bus in Asbury Park, they spotted defendant sitting with Ashley in a pizza parlor near the bus station.
In the confrontation that followed, defendant fatally shot Duwuan in the chest, and shot Dawn in the shoulder, elbow, and leg. A stray bullet grazed George Williams, an innocent bystander. Dawn testified that it was an unprovoked attack. Defendant testified that he shot Duwuan in self-defense, because Duwuan threatened to kill him and reached toward his waist, and he saw a gun in Duwuan's waistband. Defendant claimed that he shot Dawn by accident. Much of the confrontation and the shooting was captured on the pizza parlor's interior and exterior security video cameras. The videos were shown to the jury at the trial.
Several police officers who were in the area heard the shots ring out; they ran to the scene and encountered Duwuan who told them that "he shot me." They searched Duwuan and found no weapons, nor did they find any gun in the vicinity. When Officer Lorenzo Pettway tried to apprehend defendant as he ran from the scene shortly after the shooting, defendant pointed a gun at him. However, instead of shooting Officer Pettway, defendant dropped the gun and surrendered. Defendant made statements to the police, some of which were ruled admissible, and some of which were excluded except for impeachment purposes.
After defendant was arrested, the police located Ashley who consented to a search of the motel room she was sharing with defendant. In the room, the police found ammunition for the same type of .45 caliber gun defendant used in the shooting, a 9-millimeter handgun, almost an ounce of cocaine and some marijuana, and paraphernalia used to package drugs. The police found large amounts of cash on defendant's person and in the motel room.*fn3
We next summarize the pre-trial motions, which relate to several of defendant's appellate arguments. At the beginning of the Miranda*fn4 hearing, the State told the judge that at some point during his statement to the police defendant said that he did not want to continue speaking with them. The State conceded that it could not affirmatively introduce any statements defendant made thereafter. However, the State asked the court to decide on the voluntariness of the confession as a whole so that, if defendant testified at the trial, the State could use the entire statement solely for impeachment purposes. See State v. Burris, 145 N.J. 509, 533-34 (1996).
According to police witnesses, when defendant was first arrested, he made immediate unsolicited statements, telling the police that the victims were trying to rob him and one of them said he was "going to kill" defendant.*fn5 After he was read his Miranda rights, defendant began telling the officers that he was with his friend Ashley outside the pizza restaurant, when a man whom he did not know walked up and tried to rob him. He claimed that he shot the robber in self-defense and also accidentally shot an unknown female. The police asked defendant to stop talking to them until they could take his statement on videotape. They drove him to a different location where they had video equipment available, and they then conducted a formal interview of defendant. During that interview, defendant first repeated his statement that an unknown man tried to rob him, but after the police revealed to him that Dawn had survived the shooting, he admitted that the victims were his girlfriend and her son.*fn6 He also admitted that Duwuan was unarmed and was looking down at his cell phone when defendant shot him.
On the videotape, defendant consented to the police searching his room at the Flamingo Motel in Asbury Park. However, that consent was given after defendant expressed his desire to stop talking to the police. According to Sergeant Michael Meany, he did not hear defendant's statement about wanting to stop talking; Sergeant Meany contended that, had he heard it, he would have asked defendant to clarify the statement to be sure defendant no longer wanted to speak to the police, and he would have obtained a search warrant for the motel room. He confirmed that he told defendant that he did not have to consent to the search of the room.
According to Sergeant Douglas Johnson, Ashley voluntarily consented to allow the police to search the motel room, after being advised of her right not to consent. In the motel room, the police found cash, drugs and a gun other than the one used in the shooting. According to Ashley's hearing testimony, however, the police did not tell her she could refuse consent.
Ashley also testified to the circumstances under which the police located her. She and defendant both had cell phones with a walkie-talkie or "chirp" function. After the shooting, she went back to the motel and started chirping defendant's cell phone to try to locate him. She did not realize that the police had possession of defendant's cell phone. At some point, she received a chirp back from defendant's phone and she responded. The person on the other end told her that the police needed to talk to her. She told the person where she was, and the person indicated they would come pick her up. While she at first thought defendant was on the cell phone, she later realized that the police were coming to the motel to pick her up.
On December 3, 2007, the trial judge rendered an oral opinion deciding defendant's motion to suppress evidence of his statements to the police and evidence seized from the motel. The judge found that the police advised defendant of his Miranda rights, and he voluntarily waived them. Therefore, the initial statement he made to the police - in which he admitted shooting the alleged unknown male assailant whom he claimed was trying to rob him, and admitted shooting an allegedly unknown woman - was admissible. However, the judge found that once the police confronted defendant with information that he knew the victims, defendant "invoked his right to silence" by saying that he did not "want to speak anymore." The judge therefore held that the State could not use the balance of defendant's statement "in its case-in-chief" because the remainder of the statement was obtained in violation of defendant's Miranda rights.
However, the judge found that the State could use the statement to cross-examine defendant if he testified at trial. Citing Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), and State v. Burris, supra, 145 N.J. at 533-34, the judge concluded that the statement was voluntary. He found that "the defendant's will was not overborne. . . . The entire interview was videotaped and in no portion of the videotape does it appear that in the officers' questioning of Mr. Harris they [coerced him] or in any way overcame his will." The judge found that "defendant was cooperative and cordial throughout the process. The defendant took the opportunity to give a statement to explain his version of the events and his relationship with the victims." The judge further found that "the probative value of that statement far outweighs any prejudicial effect."
The judge also addressed the consent to search the motel room. After viewing the videotape of defendant's interview with the police, he found that the police did not give defendant the opportunity to refuse to consent to the search and therefore the search could not be justified based on defendant's consent.
Addressing Ashley, the judge found that her statement to the police was voluntary, and in fact she welcomed their assistance because she was very afraid of her rival, Dawn. Citing State v. Maristany, 133 N.J. 299 (1993), and State v. Farmer, 366 N.J. Super. 307 (App. Div.), certif. denied, 180 N.J. 456 (2004), the judge found as fact "that Ashley was a co-occupant of the room at the Flamingo Motel" and had "common authority" over the premises. He also found that the police reasonably concluded that she was a co-occupant, because when they came to pick her up they saw her belongings in the room through the open door. He believed the officers' testimony that they told her she had the right to refuse consent, and she voluntarily gave consent to their searching the room. On the other hand, he did not believe Ashley's hearing testimony "one bit." He concluded that her consent to search was valid.
In his Points I, II and V, defendant contends that the prosecutor took unfair advantage of the court's evidentiary ruling precluding the introduction by the defense of defendant's initial statement to the police that "they" tried to shoot him. He argues that his initial statement to the police, that the victim tried to shoot him, was admissible as an excited utterance. N.J.R.E. 803(c)(2). Alternately, he argues the statement was admissible under the doctrine of completeness. N.J.R.E. 106. He also contends that he had no obligation to present a self-defense claim to the police upon his arrest, and the prosecutor's comments on his failure to raise his defenses earlier violated his Fifth Amendment right to remain silent. These arguments are entirely without merit, and are largely contradicted by the trial record. They warrant no discussion beyond the following comments. R. 2:11-3(e)(2).
We review a trial court's evidentiary rulings for abuse of discretion. State v. Buda, 195 N.J. 278, 294 (2008). The trial judge did not abuse his discretion in ruling that defendant's initial, self-serving statement to the police was not admissible as an excited utterance. N.J.R.E. 803(c)(2). Defendant was not a disinterested witness. See State v. Rivera, 351 N.J. Super. 93, 107 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003). And "[p]resumably most, if not all, criminals are 'excited' when arrested." Id. at 108. Moreover, as we recognized in ruling on admissibility of a statement allegedly made against a declarant's interest, "a self-serving statement made after the commission of a crime provides too much opportunity for contrivance to warrant admission." State v. Gomez, 246 N.J. Super. 209, 215-16 (App. Div. 1991).
Moreover, contrary to defendant's appellate argument, his initial remarks to the police were presented to the jury; the State did not take unfair advantage of the court's evidentiary rulings; and the prosecutor did not comment on defendant's invocation of his right to remain silent.
Although defendant was not permitted to introduce his own statements to the police as excited utterances, those statements were repeatedly placed before the jury. In fact, the prosecutor questioned defendant at considerable length about his immediate claim to the police that he acted in self-defense. At the beginning of defendant's cross-examination, the prosecutor elicited his testimony that when he first spoke to Detective Guy Thompson at the police station, shortly after being arrested, defendant told Detective Thompson that the man he shot had a gun and had tried to rob him. The prosecutor also elicited that he had said the same thing to Officer Williams in the patrol car on the way to the station, as well as during later questioning by the police. Of course, she also confronted defendant with his later admission that Duwuan did not have a gun.
The prosecutor also properly questioned defendant about the inconsistencies between his recorded statement to the police, in which he failed to mention his alleged theft of Duwuan's drugs, money and guns, and his trial testimony, in which he sought to characterize that theft as Duwuan's prime motive for wanting to kill him. Her later summation likewise highlighted the contradictions in defendant's statements to the police and between those statements and his trial testimony.
It is well established that a prosecutor may not comment upon, or cross-examine a defendant about, his remaining silent in the face of police questioning or otherwise invoking his Fifth Amendment rights. State v. Muhammad, 182 N.J. 551, 571-72 (2005); State v. Deatore, 70 N.J. 100, 108-09 (1976). However, if a defendant makes statements to the police, the State has the right to challenge the credibility of those statements.
A defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial.
When a defendant agrees to give a statement, he or she has not remained silent, but has spoken. Thus, we conclude that it is not an infringement of a defendant's right to remain silent for the State to point out differences in the defendant's testimony at trial and his or her statements that were freely given. [State v. Tucker, 190 N.J. 183, 189 (2007).]
Therefore, the prosecutor was entitled to cross-examine defendant on contradictions within his various statements to the police, and on contradictions between his pre-trial statements and his trial testimony. Id. at 190. She was also entitled to comment on those contradictions in her summation. Her questions and comments in no way infringed on defendant's Fifth Amendment right to remain silent.
The additional arguments in defendant's Point V, concerning alleged prosecutorial misconduct, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that the prosecutor's question about defendant's burglary conviction was addressed in the jury charge by a general limiting instruction, to which defense counsel consented, and on this record the question had no capacity to produce an unjust result. State v. Macon, 57 N.J. 325, 335 (1971).
Defendant's Point III, concerning the search of the motel room, requires little discussion. We must defer to the trial judge's findings on a suppression motion, so long as they are supported by sufficient credible evidence. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Elders, 192 N.J. 224, 243 (2007). We owe particular deference to a judge's credibility determinations. State v. Locurto, 157 N.J. 463, 470-74 (1999).
In this case, the judge concluded that defendant did not give a valid consent to search the motel room. However, based on his evaluation of witness credibility, the judge found that the police properly advised Ashley of her right to withhold consent, after which she voluntarily consented to a search of the motel room. We find no basis to second-guess the judge's decision to credit the testimony of the police and to discount Ashley's testimony, which he did not believe "one bit." See Locurto, supra, 157 N.J. at 474. In light of the judge's factual findings, his decision on the suppression motion is legally unassailable.
We likewise find no merit in defendant's contention, raised for the first time on appeal, that he was deprived of a fair trial by a police officer's testimony that defendant did not express remorse for "what happened." There was no defense objection to this very limited testimony, and on this record, it had no capacity to produce an unjust result. See R. 2:10-2; Macon, supra, 57 N.J. at 335.
Contrary to defendant's argument, the officer's testimony was not a comment on defendant's credibility. Rather, taken in context, the officer was trying to explain the tactics he used to gain defendant's confidence during the questioning. Further, the testimony concerned defendant's video-recorded statement, which was played for the jury, and they could determine for themselves whether defendant expressed remorse during the interview. Finally, a failure to express remorse would not have been inconsistent with defendant's version of events. According to defendant, Dawn and Duwuan were violent people who were out to get him, and he shot Duwuan, a gun-toting drug dealer, in self-defense.
Defendant's Point VI, concerning the exclusion of a toxicology report, is without merit. R. 2:11-3(e)(2). In an oral opinion on January 21, 2009, the judge excluded evidence that Duwuan had trace amounts of marijuana in his system at the time of death, reasoning that "it would be confusing to the jury and really would not be probative." We affirm for the reasons stated by the trial judge.
Defendant's Point VII, concerning the admission of his taped statement to the police and the transcript of that tape, is without merit, as is his Point IX, concerning cumulative error. These points warrant no discussion here, beyond the following comments. R. 2:11-3(e)(2).
After the Miranda hearing, the trial judge ruled that the statements defendant made after invoking his right to remain silent would be suppressed. However, his December 10, 2007 order provided that "defendant's statement in its entirety is admissible as impeachment evidence in the event the defendant testifies on his own behalf." Defendant testified, and the prosecutor cross-examined him extensively based on that statement. In addition, after defendant's testimony concluded, the State introduced the entire tape and transcript in evidence as part of its rebuttal case.
Defendant now contends that his taped confession and the transcript should not have been admitted in evidence on the State's rebuttal case, for two reasons. First, he claims that there should have been a Driver*fn7 hearing before the tape was admitted. We disagree. Defense counsel never requested a Driver hearing, and his brief gives no reasons why one was needed. See State v. King, 215 N.J. Super. 504, 516 (App. Div. 1987) (a Driver hearing may be waived). More significantly, the judge stated on the record that during the trial he had read the transcript while the tape was played for the jury, and he concluded that the transcript was accurate.
Second, defendant contends that the "rebuttal issues were limited" and it was not necessary to introduce the entire tape and transcript. We are not persuaded. Defendant's testimony was extensive, was at variance with his statement in multiple respects, and contained new information he had not previously disclosed. See State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 486 (2000). We find no abuse of the trial judge's discretion in admitting defendant's relatively brief recorded interview in its entirety. See State v. Balles, 47 N.J. 331, 343 (1966) (admission of rebuttal evidence is within the trial court's discretion), cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967).
Defendant's pro se argument concerning the police officers' alleged improper search of his cell phone, is not cognizable on this appeal, because it was not raised before the trial court. Therefore, the State had no opportunity to make a complete record concerning the issue and the trial judge had no opportunity to address it. We decline to address this point, without prejudice to defendant's right to address it in a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419-20 (App. Div. 1991). His second point, concerning cumulative errors, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Finally, we address the sentencing issues. We reject defendant's argument that the sentence was excessive. The judge gave a lengthy statement of reasons for imposing consecutive sentences for the shootings of the three victims. See 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). He found that defendant intended to shoot both Duwuan and Dawn, that the crimes and their objectives were independent of each other, and that the crimes involved two separate shootings and two victims.
He therefore concluded that consecutive sentences for counts one and two were warranted. The judge also found that the aggravated assault on Williams was a separate offense, and imposed a consecutive sentence on count three. He concluded that consecutive sentences were appropriate "for somebody who has killed one, seriously wounded another, and unintentionally . . . wounded a third."
We review the judge's sentencing decision for abuse of discretion, and we find none. State v. Miller, 205 N.J. 109, 128 (2011). "Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences." State v. Carey, 168 N.J. 413, 428 (2001). We also note that the judge decided not to impose the maximum sentence of life in prison on the first-degree murder conviction, but instead imposed a thirty-year sentence. With the exception of the error noted in the State's cross-appeal, we find no basis to disturb the sentence. See State v. Bieniek, 200 N.J. 601, 609 (2010); State v. Roth, 95 N.J. 334, 363-65 (1984).
Finally, on the State's cross-appeal, we agree that the Graves Act, N.J.S.A. 2C:43-6c, required the court to impose three-year periods of parole ineligibility on counts three, four and ten, because those crimes involved aggravated assault with a firearm or possession of a firearm in the course of committing a drug offense. N.J.S.A. 2C:12-1b(2); N.J.S.A. 2C:1b(9); N.J.S.A. 2C:39-4.1a.
Accordingly, while we affirm the conviction, we remand for resentencing.
Affirmed in part, remanded in part.