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State of New Jersey v. Keshawn Coleman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 3, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KESHAWN COLEMAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-10-1307.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2012 -

Before Judges Sabatino, Fasciale, and Maven.

Following an eight-day trial in March 2010, defendant Keshawn Coleman was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), -3a(2) (count 1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count 2); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count 3); and a "certain persons" weapons offense, N.J.S.A. 2C:39-7b (count 4). He was sentenced to an aggregate prison term of fifty-eight years.

Defendant now appeals, contending that (1) surveillance videotapes and corresponding descriptive testimony were improperly admitted at trial; (2) a juror who expressed concerns to the court during deliberations should have been removed; (3) the judge failed to provide a proper instruction to the jury on the "certain persons" offense; and (4) his sentence is excessive. For the reasons that follow, we affirm.

I.

The State's proofs at trial established the following pertinent facts and circumstances.

On the night of May 18, 2007, James Felton,*fn1 Lydell Rountree, and Derrick Porter were driving a van around Paterson. The men picked up two women. While they were driving around, Felton received two calls on his "bleep"*fn2 cell phone. In the first bleep call, the unidentified male caller requested that Felton meet him at a fast-food chicken store located on Rosa Parks Boulevard. In the second bleep call, the caller made the same request. When the van pulled up to the chicken store, Felton attempted to contact the caller, but the caller did not pick up his phone.

Ciera Redfern, defendant's former girlfriend, had dropped defendant*fn3 off on the same street as the chicken store at an unspecified time earlier that night. She testified that she later returned to that area to drop off a cell phone battery. She further testified that when she dropped defendant off he was wearing "[a] black hood[ie] with bones on it, some blue jeans[,] and some tan boots."

According to Porter, at some point,*fn4 Felton got out of the van near the chicken store and told Porter to drive around the block. Shortly thereafter, at approximately 1:30 a.m. on May 19, Felton was shot and killed.

Felton's cousin, Sharonda Chapman, had arrived at her friend Erica's*fn5 house around midnight or 12:30 a.m. that night. She was sitting on the porch and braiding her friend's hair when she observed defendant, who was wearing a "black hooded jacket with skeleton bones," jean shorts, and Timberland boots. Chapman testified that she saw defendant by the chicken store and that she then heard gun shots coming from inside that location. She saw people running and "Doo-Boo [defendant] coming out backing up shooting at the chicken store doorway. As he was backing up[,] his hood fell off, [and] that's how I got a chance to see his face actually."*fn6 Chapman stated that she then saw Felton fall and that after Felton fell, defendant "looked around and just took off."

Nasheema Johnson, who had known defendant since high school, testified that a few weeks before the shooting, she saw defendant and Felton bump into each other at a club. According to Johnson, defendant was "angry a little bit," but he and Felton did not get into a fight.

On the night of the shooting, Johnson was also sitting on Erica's porch. Johnson, like Chapman, testified that she saw defendant on the night of the shooting and that he was wearing a skeleton hoodie. She testified that she saw Felton and defendant go into the chicken store, that she heard gun shots, and that she then observed Felton "stumbling" out of the chicken store. She related that, at that point, defendant was wearing a black mask. According to Johnson, Felton was "hurt badly," but defendant "just pushed him off and just shot more" and then "took off."

Another bystander, Jason Day, was inside the chicken store at the time of the shooting. He testified that when he was in the store, he heard shots go off, and he tried to run behind the counter. He stated that Felton ran into him, and they both fell to the floor.

The day after the shooting, the police showed Chapman a photo array. She identified defendant as the shooter. Johnson met with the police four days later. She also was shown a photo array and identified defendant as the person who shot Felton. Later that week, Day also met with police. According to the transcript of his interview with the detectives, Day stated that the shooter was wearing a black hoodie with bones on it and jeans, although at trial he contended that he had not seen the shooter.

Three days after the shooting, the police recovered from Redfern's home a pair of tan Timberland boots with suspected blood stains. The firearm used in the shooting was not recovered.

A police informant, Barrick Wesley, also testified on behalf of the State. At the time of the trial, Wesley was serving a twenty-year prison sentence. Wesley met defendant in jail. Wesley testified that defendant told him in jail that he had shot someone "five or six times in the stomach." Defendant also told Wesley that he was worried that a witness would be able to identify him because his hood had come off as he ran out of the store. Wesley then wrote a letter to a Camden County prosecutor in an effort to obtain a transfer to a different facility in exchange for the incriminating information he had received from defendant.*fn7

In addition to these factual proofs at trial, the State presented expert testimony from a ballistics expert, Sergeant James Ryan of the State Police, and a forensic pathologist, Dr. Alex Zhang. Sergeant Ryan opined that three of the four bullets collected from the scene were discharged from the same firearm; his results as to the fourth bullet were inconclusive. He described the bullets as being "most consistent" with a revolver. Dr. Zhang testified that Felton was shot four times: once in the right forehead, once on the left hip, once on the left buttock, and once in the right lower abdominal area. The pathologist concluded that Felton's gunshot wound to the head was a fatal injury.

Defendant did not testify at trial and he did not present any witnesses.

The jury found defendant guilty of counts 1, 2, and 3. Immediately thereafter, the trial was resumed before the same jury as to count 4, the "certain persons" weapons offense. The jury likewise found defendant guilty of count 4. Defendant then moved for a new trial, which the judge denied.

In imposing defendant's sentence, the judge specifically found that aggravating factors (3) (the risk that defendant will re-offend), (6) (the extent of defendant's criminal record), and (9) (the need for deterrence), see N.J.S.A. 2C:44-1a(3), (6), (9), applied, and that no mitigating factors applied, see N.J.S.A. 2C:44-1b. The judge merged count 2 into count 1 and sentenced defendant to fifty years as to count 1, with an 85% parole ineligibility period pursuant to N.J.S.A. 2C:43-7.2, and an ensuing five-year probationary period. The judge also sentenced defendant to five years as to count 3, to run concurrent to count 1, and eight years (five years without probation) as to count 4, to run consecutive to count 1. The judge also imposed mandatory fines and fees.

II.

On appeal, defendant raises the following points:

POINT I

THE COURT ERRED IN ADMITTING TWO SURVEILLANCE VIDEOTAPES BECAUSE THE IMAGES WERE SO UNCLEAR AS TO HAVE NO EVIDENTIAL VALUE, AND THE INTERPRETATION OF WHAT WAS DEPICTED BY THE WITNESSES WAS RANK SPECULATION POINT II

THE COURT ERRED IN FAILING TO EXCUSE JUROR #8 WHO ASKED TO BE RELIEVED BECAUSE SHE WAS TROUBLED BY THE LACK OF PROOF AND HER BELIEF IT WAS HER DUTY TO CONVICT. (Not Raised Below)

POINT III

THE COURT EDITED THE CHARGE ON CERTAIN PERSONS NOT TO HAVE A WEAPON IN SUCH A WAY THAT THE COURT, NOT THE JURY, FOUND THE ELEMENT OF A PREDICATE OFFENSE POINT IV

THE DEFENDANT'S SENTENCE OF 50 YEARS, 85% TO BE SERVED BEFORE PAROLE UNDER NERA, CONSECUTIVE TO THE SENTENCE FOR CERTAIN PERSONS NOT TO HAVE FIREARMS, WAS MANIFESTLY EXCESSIVE We address these arguments in turn.

A.

During the course of the trial, the trial judge conducted an evidentiary hearing at defendant's request to determine the admissibility of two surveillance videotapes. One videotape was filmed inside the chicken store near the shooting location. The other videotape was filmed by a surveillance camera on a street pole by the store.

Both surveillance tapes, particularly the chicken store video, are of less than optimal quality.*fn8 Nevertheless, the videos are sufficiently clear to show the general configuration of the store and the nearby street, as well as the presence and movements of persons at those locations.

Defendant's trial counsel did not object to the playing of the store surveillance tape. Instead, he objected to the "running commentary" of any witnesses for the State who would be "interpret[ing]" for the jury what happens in the video. Counsel argued that the store video is "of such poor quality that it's open to speculation as to what's on there," and that the audio commentary would interfere with the jury's fact-finding role.

The prosecutor agreed that the store videotape was blurry. He maintained, however, that the images on that tape were relevant and that any eyewitness could comment upon them, regardless of his or her location at the time of the shooting, so long as he or she could identify defendant's distinctive clothing.

Upon considering these arguments, the trial judge ruled:

If the witness was an actual observer of what's on that surveillance tape [he or she] can testify to what they see . . . . If that witness was not present inside or outside the store and [did not] actually observe[] what is on the tape, they cannot testify to it. However, the videotape will go into evidence or will be shown to the jury . . . I would also permit the prosecutor to make reference to it in his summation . . . . [Emphasis added.]

Consistent with this ruling, the store videotape was played for the jury during the testimony of Henry Hernandez, the police officer who had edited the videotapes. However, neither Officer Hernandez, nor any other trial witness, provided a "running commentary" to the store videotape while it was played.

Defense counsel renewed his objection when the State attempted to move the store videotape into evidence after it had been played. He argued that the store videotape is "impossible to decipher" and that it "would have the tendency to be more confusing than probative." The judge rejected these contentions, again ruling that the store videotape could be shown to the jury and also commented on by the prosecutor in closing arguments.

During his summation,*fn9 the prosecutor presented the jury portions of the store videotape. The prosecutor suggested that defendant, wearing a hoodie, could be seen on the tape:

What do you guys see here on the door?

What do you see? Do you see a dark colored shirt with all white lines on it? . . .

What do you see here right at the door?

Black hood[ie] or black top. Let's put it that way. White lines. Arm[] extended.

The State also introduced at trial the surveillance videotape of the street scene. The tape was filmed from a pole at the intersection by the chicken store. This videotape, which was longer than the store videotape, was edited down to six shorter clips.

Defendant's trial counsel similarly did not object to the playing of the street video. Instead, he expressed concerns about determining the timing of the clips.

Detective Pelosi testified that a person matching the witnesses' description of defendant (i.e., a male with a skeleton hoodie and tan boots) appeared on the street videotape five times. During Chapman's direct examination, she noted that she observed defendant on the street videotape, and that he appeared to be walking on Godwin Avenue near the chicken store. On cross-examination of Chapman, defense counsel suggested that Chapman had watched the videotape so many times that she could anticipate what was going to happen.

Johnson also testified regarding the street videotape after it was played, describing the location of the shooting and noting that she saw "Doo-Boo [defendant] running" in one of the clips. Ultimately, the street videotape was introduced into evidence over defense counsel's objection. The jury requested and was granted permission to view both videotapes during their deliberations.

On appeal, defendant contends that the presentation and admission into evidence of the two videotapes was erroneous. He further contends that these proofs were highly prejudicial because the theme of his defense was misidentification. He argues that the store videotape was irrelevant because it was, in essence, blurry and undecipherable, although he admits that the street video was clearer. He further maintains that neither videotape was properly authenticated, although he acknowledges that his trial counsel stipulated to the proper functioning of the video camera equipment and the chain of custody.

The law generally recognizes that authenticated recordings that are reasonably clear*fn10 and which have at least some probative value are commonly admissible. See 3 Wharton's Criminal Evidence § 16:15 (15th ed. 1999) ("[a] videotape is not necessarily inadmissible because a portion of the tape is inaudible or unclear"); see also State v. Zicarelli, 122 N.J. Super. 225, 239 (App. Div.) (finding that an audio recording was admissible even where portions were inaudible), certif. denied, 63 N.J. 245, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973); People v. Moody, 600 N.Y.S.2d 581, 582 (N.Y. App. Div. 1993) (finding photos from a video were admissible even though they were "fuzzy").

The critical question in this context has usually been described by courts as whether the recording is sufficiently "intelligible."*fn11 For example, in State v. Driver, 38 N.J. 255, 288 (1962), the Supreme Court held that an audiotaped recording proffered by the State should have been excluded because it was not sufficiently clear. The Court ruled that the trial court had improperly admitted the recording of the defendant's confession, despite the fact that the recording was "garbled, full of static and other foreign sounds . . . ." Ibid. The Court further noted that "[the recording] was unintelligible and inaudible for the most part, and a fair exercise of discretion required the entire tape to be withheld from the jury." Ibid.

On the other hand, in Zicarelli, supra, we found that a trial court acted within its discretion in admitting a recording that was only partially "intelligible." 122 N.J. Super. at 238-40. In that case, the defendants had been charged with conspiracy to corrupt a mayor. Id. at 229. At trial, the State wished to introduce an audio recording of a conversation between one of the defendants and a government informant. Id. at 239. We ruled in Zicarelli that the recording tended to prove the intimacy that existed between the defendant and the informant, and that it was therefore admissible for that purpose. Id. at 239-40.

In distinguishing Zicarelli from Driver, we noted in Zicarelli that the recording in Driver was relevant only in that it depicted a confession - "[i]t had no other probative value." Ibid. We further observed that in Driver, "the inaudibility of the tape was central to the purpose for which it was offered and, because it was largely inaudible (in addition to its involuntary nature), it would have been grossly unfair to admit it." Ibid.

Applying these principles here, we are satisfied that the trial judge did not abuse his discretion in allowing the surveillance films to be considered by the jury. See State v. Ramseur, 106 N.J. 123, 266 (1987) (noting the deference applied on appeal to a trial court's evidential rulings).

The videotaped recordings went not only to the issue of identification, but also provided the jury with a better understanding of the layout of the chicken store and the location of the shooting. Although the store videotape is undoubtedly blurry, it reasonably can be construed to depict a person in the store wearing what appears to be a dark hoodie and jean shorts. The videotape is also clear enough to provide a viewer with an enhanced sense of the store's interior. The street videotape, which is of better quality, several times depicts a person matching the description of defendant. The video clips also can reasonably be interpreted to show that person moving away from an individual lying on the ground.

There is an adequate basis to conclude that the videotapes have enough clarity (or "intelligibility") to justify their presentation to the jury. The tapes meet the test of relevance under N.J.R.E. 401 because they at least have a "tendency" to show that a person matching defendant's description was at the chicken store and in the nearby street at the time of the shooting. The tapes are not wholly incomprehensible like the tapes in Driver. Their probative value, although limited, is not "substantially outweighed" by unfair prejudice to be excluded under N.J.R.E. 403.

We also discern no reversible error caused by the trial judge allowing Chapman and Johnson to offer commentary about what they believed to be depicted on the street videotape. Lay witnesses may properly offer interpretations of a video recording, so long as those interpretations are based on personal knowledge and will be helpful to the jury. See State v. Loftin, 287 N.J. Super. 76, 99-100 (App. Div.), certif. denied, 144 N.J. 175 (1996); see also N.J.R.E. 701 (regarding lay witness opinions).

Here, the trial judge correctly precluded Chapman and Johnson from commenting on the chicken store videotape because they were not inside the store at the time of the shooting and thus that testimony, if it had been allowed, would not have been based on personal knowledge. See N.J.R.E. 602. In contrast, the judge properly allowed Chapman and Johnson to offer commentary about the street videotape. They both had observed the area by the chicken store on the night of the shooting. They both were also familiar with defendant and, in particular, what he was wearing the night of the shooting. Their testimony regarding the street videotape was therefore properly based on their personal knowledge. Such testimony was well suited to aid the jury, given the fast pace of the action depicted in the video and its somewhat blurry quality.

Finally, any potential prejudice to defendant from the explanatory testimony of Chapman and Johnson was ameliorated by the fact that the jurors had their own independent opportunity to view the street videotape, without narration, and determine whether or not they believed defendant appeared in that recording. See Loftin, supra, 287 N.J. Super. at 100 (finding that it was permissible for a detective to narrate and interpret a videotape, where the testimony was based on the detective's own perceptions and where it assisted the jury in understanding defendant's actions). Thus, it was proper here for the trial court to permit Chapman and Johnson to narrate and comment on the street videotape.

We also detect no authentication problem with the recordings. Pursuant to N.J.R.E. 801(e), a video recording is a "writing," which is generally admissible as evidence under the hearsay rules if it is properly authenticated, Loftin, supra, 287 N.J. Super. at 98. Such video "writings" may be authenticated "by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. Moreover, stipulations are binding on parties. See Loftin, supra, 287 N.J. Super. at 96; see also Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 325 (App. Div.), certif. denied, 152 N.J. 10 (1997).

At trial, defendant's counsel stipulated that the chicken store "had a functional video camera recording surveillance [located] inside the store during the early morning hours of May 19th, 2007,"; that "the City of Paterson had a functioning surveillance camera on a pole located at the intersection of Rosa Parks Boulevard and Godwin Avenue on the night of May 18th and early morning hours of May 19th, 2007"; and that the Paterson Police Department followed appropriate chain-of-custody procedures. These stipulations adequately provide a foundation for the admission of the videotapes.

Defendant incorrectly suggests that it was necessary -- in addition to the parties' stipulations -- for a witness for the State to testify regarding the camera angle and set-up. No such testimony was required here, particularly in light of the stipulations establishing the positioning and use of the video cameras.

In sum, the trial judge correctly left it up to the jurors to determine whether the two videotapes were sufficiently authentic and clear and whether they, in fact, placed defendant at the scene of the shooting. Cf. Konop v. Rosen, 425 N.J. Super. 391, 420 (App. Div. 2012) (holding that the jury, not the judge, should make the "purely . . . factual determination" that bears upon the admissibility and probative value of evidence).

B.

Defendant next contends that the trial judge erred in declining to excuse Juror No. 8 from continuing in deliberations after she had expressed certain concerns about her service to the court. We disagree.

During the course of deliberations, Juror No. 8 asked to speak with the assigned sheriff officer. The juror reportedly told the officer, "'I just want to tell the judge that I really don't want to do this, and can I take the place of one of the alternates?'"

The trial judge then brought Juror No. 8 into chambers to discuss her concerns and to determine whether she needed to be removed from the jury panel. The following exchange ensued:

[JUROR NO. 8]: I just don't think -- I think this is very important, and I don't want to make [a] mistake on somebody's life. It's the rest of his life, and I don't think I have the power to do that, to say that I can do it religion-wise. [THE COURT]: What? [JUROR NO. 8]: Religion-wise. [THE COURT]: Is there any reason why you didn't tell me this at the beginning of the trial --*fn12

[JUROR NO. 8]: To be honest, I have to tell you I don't think the police did a very good job. [THE COURT]: But what's happened since the time we talked to you at the beginning of the case? Remember we asked you about the evidence? [JUROR NO. 8]: Follow all the evidence presented to me. I think if the police did a better job, it would be easier or clearer and I can judge, make a judgment, or give my opinion. [Emphasis added.]

After confirming that Juror No. 8 had not shared these concerns with the other jurors, the judge discussed with the prosecutor and defense counsel whether she should be removed from the panel. Thereafter, Juror No. 8 was brought back into chambers and had this further exchange with the judge:

[THE COURT]: Being a Buddhist, does that prevent you from finding somebody guilty of a crime if you believe that there is evidence presented against them? [JUROR NO. 8]: No, they [sic] don't prevent you to do that. They don't prevent you to do the right thing. [THE COURT]: What you are telling us is yes, you could? If you believed that he was guilty, you could find him guilty, but you also have to have mercy on somebody who is guilty of a crime?

[THE COURT]: You have to decide it totally on the facts and not on emotions. [JUROR NO. 8]: Right, emotions. The facts presented is very -- from the evidence of the witness is very clear, but then it's not truly clear because we don't -- we know that we don't have physical evidence and we don't have DNA and we don't have phone record. So there's shades of that. [Emphasis added.]

Ultimately, the judge allowed Juror No. 8 to remain on the jury. In fact, defense counsel specifically commented, "my sense is [Juror No. 8] was unequivocal in her last couple of answers and that her religion doesn't prevent her from making a decision." (Emphasis added). Defense counsel did express a concern that the judge's comments to the juror placed an undue emphasis on finding his client guilty. Nevertheless, defense counsel specifically told the court that, "I don't want you to bring her [Juror No. 8] back in here at this point and correct anything . . . ." (Emphasis added).

Juror No. 8 thus returned to the jury room to take part in the continued deliberations, without any objection or further discussion. The jury thereafter returned its guilty verdict on Counts 1, 2, and 3, three days later.

In his ensuing motion for a new trial, defendant argued, pro se, that Juror No. 8 should have been excluded from further deliberations.*fn13 The trial judge rejected that contention. He noted that, if anything, Juror No. 8 had expressed sentiments favorable to the defense, and that defendant would have claimed prejudice if the court had declared a mistrial. As the judge put it:

This was a woman [Juror No. 8] who was indicating that she felt that the [p]rosecutor very well may not have proven his case. Why would I have granted a mistrial for that? Because you know as well as I do if I knocked her off, you know what you would have been standing there and telling me? ["]Judge, you knocked off a juror that was in my favor.["]

On appeal, defendant contends that the trial court misinterpreted Juror No. 8's comments, and that she actually believed it was her duty as a juror only to vote to convict. He argues that substitution of one of the alternates for Juror No. 8 would have been proper, that it would not have caused substantial delay, and that it would not warrant a mistrial. He alleges that the failure to discharge Juror No. 8, or to declare a mistrial, deprived him of his constitutional right to a fair trial. He also claims that the judge's comments to Juror No. 8 in chambers were unduly prejudicial and overly favorable to the prosecution.

We conclude that the judge's decision to retain Juror No. 8 and his instructions to her are sound and are consistent with the governing law, particularly in light of defendant's trial counsel's expressed preference to retain that juror.

After deliberations have begun, a trial court may dismiss a juror if he or she presents an "illness or other inability to continue." R. 1:8-2(d)(1). However, jurors should be discharged "sparingly" under this Rule, given the constitutional interests*fn14 implicated by the substitution of a juror after deliberations have begun. See Pressler & Verniero, Current N.J. Court Rules, comment 4.3 on R. 1:8-2 (2013). A trial court's decisions regarding dismissal of jurors are reviewed only for abuse of discretion. See State v. R.D., 169 N.J. 551, 560-61 (2001).

Applying these standards, we conclude that it was appropriate for the trial court to keep Juror No. 8 on the jury panel. The judge properly and thoroughly inquired of the juror as to whether her religious beliefs would preclude her from rendering a guilty verdict. Moreover, defendant's trial counsel specifically stated that he believed the juror should remain on the panel, most likely because he reasonably believed from the gist of her comments that she was leaning in his client's favor.

The doctrine of invited error further precludes defendant from now arguing that Juror No. 8 should have been excluded. See State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) ("[A party] cannot request the trial court to take a course of action, and upon adoption by the court take his chance on the outcome of the trial, and, if unfavorable, then condemn the very procedure which he urged, claiming it to be error and prejudicial."); see also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010). As aptly noted by the trial judge, had he dismissed Juror No. 8, defendant would now be arguing on appeal that the juror should have been left on the jury and that it was reversible error to remove a juror who was leaning in his favor. Defendant cannot have it both ways. The trial judge did exactly what defendant's trial counsel wanted him to do, which justifies application of invited error principles.

Defendant's claim that the judge's comments to Juror No. 8 were too favorable to the State is also unavailing. First, the judge's actual words did not focus only upon conviction. The judge also emphasized that it was the juror's responsibility to determine "if [defendant is] guilty or not guilty, or has he been proven guilty beyond a reasonable doubt." Moreover, when the judge re-read the jury charge for murder at the jury's request, he repeatedly stated that it was the State's burden to prove guilt beyond a reasonable doubt, emphasizing that the jurors should only convict defendant if the State had met its considerable burden. Finally, defendant's trial counsel made it clear that he did not want the judge to bring Juror No. 8 back into chambers and re-instruct her, or reiterate that his prior comments should not have been misconstrued to mean that it was her duty to convict. Having advocated for the path that the court actually took, defendant cannot now argue that Juror No. 8 should have been reinstructed. See Sykes, supra, 93 N.J. Super. at 95.

C.

The last count of the indictment charged defendant with violating N.J.S.A. 2C:39-7b, a statute that prohibits "certain" persons from having firearms. Defendant's trial was appropriately bifurcated to reserve this count for a second phase of the trial. See State v. Ragland, 105 N.J. 189, 193-95 (1986); see also State v. Brown, 180 N.J. 572, 578 (2004).

During the charge conference for the second trial phase, the court provided defense counsel and the prosecutor with a copy of what it believed to be the appropriate model jury charge, i.e., the charge for N.J.S.A. 2C:39-7b, "Certain Persons Not to have any Firearms." (Emphasis added). However, the comments made during the charge conference indicate that the judge and counsel were actually using the model jury charge for N.J.S.A. 2C:39-7a, "Certain Persons Not to Have any Weapons." (Emphasis added). These charges are substantially the same.

However, defendant's violation of N.J.S.A. 2C:35-5a is only listed as a "certain enumerated offense" in the N.J.S.A. 2C:39-7b(1) model charge and does not appear in the N.J.S.A. 2C:39-7a model charge.*fn15

In order to be found guilty of either of these forms of certain persons offenses, the State would have to prove: (1) that there was a weapon/firearm, (2) that defendant had possessed or controlled that weapon/firearm, and (3) that defendant had previously been convicted of, among other things, a qualifying predicate offense. See, e.g., Model Jury Charge (Criminal), "Certain Persons Not to Have any Firearms" (2005).

At the charge conference, defendant declined to stipulate that he had been convicted of a predicate offense. The judge consequently agreed to redact the judgment of conviction that the State intended to introduce into evidence, so that it merely indicated, without elaboration, that defendant had been convicted of a qualifying third-degree offense. Defense counsel also stated that "the only areas of objections that I have would be your [h]onor advising the jury that the offense contained on the prior conviction [which the prosecutor intended to move into evidence] is a predicate offense."

Thereafter, in delivering the jury charge on count 4 during the second phase of the trial, the judge instructed:

The third element that the State must prove beyond a reasonable doubt is that the defendant is a person who [has] previously been convicted of a crime of the third degree. The term ["]convicted of a crime["] means a Judgment of Conviction entered by a court of competent jurisdiction in this state, New Jersey, or elsewhere.

Now, the State has submitted into evidence S-96, which is a certified copy of a conviction in that it is a predicate offense. Normally evidence of a predicate offense is not permitted under our rules of evidence. This is because our rules specifically exclude evidence that a . . . defendant has committed prior crimes when it is offered only to show that he has a disposition or tendency to do wrong and therefore must be guilty of the present offense. However, our rules do permit evidence of prior crimes when the evidence is used for some other purpose. In this case, the evidence has been produced for the specific purpose of establishing an element of the present offense. [Emphasis added.]

The jury then returned a verdict of guilty of count four.

Defendant argues that the judge improperly determined that defendant had indeed committed a predicate offense, usurping the jury's fact-finding function. He asserts that the portion of judge's charge indicating that the certified copy of the judgment of conviction "establish[ed]" the predicate offense on count 4 violated his right to due process and a fair trial. We reject that assertion.

When a defendant is charged with both the unlawful possession of a firearm and the unlawful possession of a firearm by a person under a disqualifying prior conviction, those charges should be tried separately so as to avoid any undue prejudice that might result from the jury knowing that the defendant is a former convict. Ragland, supra, 105 N.J. at 193; see also Brown, supra, 180 N.J. at 578. A new jury may be empanelled to hear the certain persons charge, or the same jury may hear both charges. Ragland, supra, 105 N.J. at 194-95. However, where, as here, the same jury is used for both charges in two successive trial phases, "the jury [must] be instructed in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict." Id. at 195.

A defendant may stipulate that he or she committed the requisite predicate offense. Brown, supra, 180 N.J. at 585. If he or she chooses not to stipulate, the trial court "should sanitize the offense or offenses and limit the evidence to the date of the judgment." Ibid. "[A]ny potential for prejudice can be ameliorated by the sanitization of the predicate offense." Id. at 584.

Neither alleged flaw in the charge on count 4 now raised by defendant warrants a reversal. First, the trial court's reading of a charge that substantially tracked the model jury charge for N.J.S.A. 2C:39-7a, instead of the model charge for N.J.S.A. 2C:39-7b(1), does not constitute reversible error. It is true that the judge should have issued the model charge for N.J.S.A. 2C:39-7b(1), and that he mistakenly issued the charge for N.J.S.A. 2C:39-7a instead. However, that mistake does not constitute reversible error in this case, mainly because the charges for N.J.S.A. 2C:39-7a and N.J.S.A. 2C:39-7b(1) are almost exactly the same. They differ only in that the model charge for N.J.S.A. 2C:39-7a states that the State must prove that there was a weapon involved in the instant crime, while the N.J.S.A. 2C:39-7b(1) model charge requires the State to prove that there was a firearm. See Model Jury Charge (Criminal), "Certain Persons Not to Have any Firearms" (2005); Model Jury Charge (Criminal), "Certain Persons Not to Have Any Weapon" (2005). That distinction is inconsequential in the present case. Defendant was found guilty of using a handgun to murder Felton, and a handgun is both a "weapon" and a "firearm." See N.J.S.A. 2C:39-1(f) (defining a firearm), -1(r) (defining a weapon). The distinction between the two charges in subsections (a) and (b) is thus meaningless in these particular circumstances.

Defendant's argument that the judge usurped the jury's fact-finding role by stating that he had been convicted of a predicate offense is unavailing. According to both model jury charges, if a defendant declines to stipulate to an offense, the trial court "should sanitize the offense or offenses and limit the evidence to the date of the judgment." See Model Jury Charge (Criminal), "Certain Persons Not to Have Any Firearms," n.5 (2005); Model Jury Charge (Criminal), "Certain Persons Not to Have Any Weapons," n.4 (2005).

Here, there was no actual dispute as to whether defendant had been convicted of a predicate offense. There was also no basis to invalidate the certified judgment of conviction. Consequently, any error stemming from the judge's extraneous comments about defendant's prior conviction constituting a predicate offense was undoubtedly harmless. See State v. Macon, 57 N.J. 325, 337-38 (1971).

D.

Little needs to be said about defendant's final contention that his sentence is excessive. The custodial terms imposed were well within the statutorily-prescribed ranges, and the aggravating factors cited by the trial judge were all supported by the facts. The victim's shooting in the forehead was committed without any apparent provocation and in a public place, demonstrating defendant's disregard for the law and human life. Defendant had multiple prior adult convictions, and various probation violations as a juvenile. No mitigating factors apply. The consecutive eight-year sentence imposed for the certain persons weapons offense was consistent with State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded in part by statute, N.J.S.A. 2C:44-5.

Given these circumstances, there is no reason to second-guess the trial judge's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating the deference appellate courts must accord to trial judges in sentencing decisions).

Affirmed.


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