October 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIKE NEWMAN A/K/A MICHAEL NEWMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-02-0140.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Graves and Guadagno.
Tried to a jury, defendant was convicted of first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count one); second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)(count two); 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(c)(count four); and first degree robbery, N.J.S.A. 2C:15-1 (count six). In a bifurcated proceeding, the jury also convicted defendant of second degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a)(count five).
On count one, the court found defendant subject to a mandatory extended term with a range of twenty years to life, and imposed a sentence of forty years. On count six, a concurrent twenty-year term was imposed. Both of these sentences were subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Counts two and three were merged into count one and defendant received concurrent five and ten-year sentences for counts four and five.
On appeal, defendant claims the trial court erred in denying his motion to suppress the victim's identification; the introduction of other crimes evidence was improper; and the sentence was excessive. After a thorough review of the record in light of the contentions advanced on appeal, we affirm.
Because defendant does not challenge the sufficiency of the evidence of guilt, which was substantial, we will only briefly recite the facts.
Just after midnight on August 3, 2008, Samuel Epright left his home in Seabrook, intending to drive to the local WaWa for coffee and to refuel his car. As he reached for the handle of his car, a person holding a shotgun told Epright "Give me your money." When Epright replied he didn't have any money, the gunman asked, "Do you think I'm playing?" Epright was then struck in the back of his head and fell. When he got back up, the gunman again asked if Epright thought he was playing. When Epright responded "No, I don't think you're playing," the gunman fired a shot into Epright's left thigh. Epright fell to the ground and yelled for someone to call 911 and an ambulance. The gunman fled. Epright's daughter and neighbors responded and the police were called. Epright provided a general description of his assailant but gave no indication that he knew him. Medical personnel arrived and airlifted Epright to Cooper Hospital.
One of the responding officers, State Trooper John Delsordo, interviewed neighbors and members of defendant's family. This investigation provided substantial evidence linking defendant to the shooting.
Defendant's cousin, Tina Rennie, who lived two houses from Epright on the same street, had dinner with defendant in her home a few hours before the shooting. Rennie was awakened that evening by her dogs barking and someone trying to get in her back door. When Delsordo interviewed her the following morning, Rennie told him of this incident and gave him permission to search her back yard. Delsordo found a shotgun which was covered by a blanket in a shed behind Rennie's home about thirty feet from where Epright was shot. Rennie had never seen the gun before and did not know how it got into her shed.
Rennie's son, Rahim Newman, told Delsordo he had seen defendant in his mother's backyard a few hours before the shooting. Defendant was wearing a hunting belt with shotgun shells attached.
Bobbie-Ann Young, Epright's former girlfriend, was stopped by police investigating the shooting as she was driving home. She told them she had seen a man running from the direction of Epright's home toward her neighborhood. About twenty minutes after Young returned home, defendant knocked on her door and asked to come in. Young refused.
Young also told police that defendant had come to her home a few weeks earlier on a bicycle wearing a vest with bullets stuck to it. Young saw a tarp on the bike and after feeling it realized it was a shotgun. When she asked defendant what he was doing, he responded, "Nobody's going to hurt me any more."
Defendant's father Michael Santiago told police that he spoke with defendant the morning after the shooting and defendant said he was in trouble because he shot someone. Defendant made a similar admission to his cousin Terry Smith-Bey, telling him that he shot a white guy in the leg and they knew each other.
Based on this evidence, defendant was arrested on August 4, 2008, and charged with Epright's shooting.
Epright spent twelve days in the hospital and underwent two surgeries on his leg. On August 6, 2008, Delsordo interviewed Epright in the hospital. He again was able to give a general description of his assailant and the type of gun he used, a single barrel shotgun.
On August 18, 2008, after his release from the hospital, Epright was again interviewed by Delsordo and identified defendant, by name, as the person who shot him. Epright said he could identify defendant and DelSordo showed him a photo of Newman obtained from DMV. Epright looked at the photo for several minutes because he "wanted to be sure," then positively identified Newman as the shooter.
On appeal, defendant raises the following issues:
UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EPRIGHT'S IDENTIFICATION BECAUSE THE SINGLE PHOTOGRAPH IDENTIFICATION PROCEDURE USED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION. U.S. CONST. Amends. VI, XIV; N.J. Const. Art. I ¶¶ 1, 10
DEFENDANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY THE ERRONEOUS INTRODUCTION OF OTHER CRIMES EVIDENCE. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I,
¶ 10. (Partially Raised Below)
THE SENTENCE IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED
At the outset, we note that the trial in the case before us predated our Supreme Court's decision in State v. Henderson, 208 N.J. 208, 288-93 (2011), in which the Court announced the revised framework for testing the reliability of eyewitness identification. The Court's decision is prospective. Id. at 302.
We begin with the fundamental proposition that "'[r]eliability is the linchpin in determining the admissibility of identification testimony[.]'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). When deciding whether to permit an in-court identification following a suggestive out-of-court identification, the court must evaluate, among other things, the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. [Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972).]
On January 5, 2010, the trial court conducted a N.J.R.E. 104 hearing, pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), on defendant's challenge to Epright's identification of defendant after being shown a single photograph.
The court found that DelSordo was a credible witness. In examining the photo that was shown to Epright the court determined that it was not a "mug shot" or even taken in a police station.
The judge noted that during the hospital interview with Epright on August 6, 2008, two days after defendant had been arrested, DelSordo gathered "fairly detailed information as to the circumstances of the offense and the assailant," but Epright did not identify defendant at that time.
On August 18, 2008, after Epright's release from the hospital, he was interviewed by DelSordo and "volunteered" that he knew who shot him and identified defendant by name unprompted by the police. DelSordo was prepared to show Epright a photo array but thought that was unnecessary once defendant was identified by name. DelSordo then showed Epright a single photograph of defendant and asked, "Is this the person that shot you?" The judge found the phrasing of this question significant, as it was not suggestive in any way. Epright then identified the photo as Mike Newman, the person who shot him. The judge found that this was simply a confirmation of an identification of someone Epright already knew and not impermissibly suggestive.
We note that a trial judge's determination at the conclusion of a Wade hearing -- that the challenged identification procedure was not so impermissibly suggestive as to give rise to a very substantial risk of irreparable misidentification -- is entitled to "very considerable weight" on appeal. State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1972). The record confirms that Epright knew the defendant and had met him several times through both his former girlfriend and his stepdaughter. We find nothing to suggest that the identification procedure employed here was unduly suggestive. Nor is there any evidence to indicate "that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist." Ibid.
Defendant next claims that on two occasions during trial the jury was presented with evidence of other crimes which violated his right to due process and a fair trial. The first occurrence was during the portion of Epright's cross-examination when defendant's counsel was questioning him about his first interview with DelSordo. At the time of this interview, defendant was in custody, having been arrested and charged with Epright's shooting two days earlier. Defendant's counsel established that when DelSordo interviewed him that day in the hospital, Epright was aware that someone had been arrested for shooting him. When asked if he knew who had been arrested, Epright made reference to defendant's theft of his daughter's pocketbook:
Q. So they -- so you knew that somebody had been arrested in this matter. Is that right?
A. That's correct.
Q. But at that point in time, you didn't know who had been arrested in this matter; correct?
A. I knew it was the same person --Q. Okay. So but --A. -- who took --Q. -- they didn't give you a name. Is that right?
A. That's correct.
Q. Okay. And you're telling us that you knew it was the same person. Is that right?
A. I knew it was the same person who took my daughter's pocketbooks.
Q. That's not what I asked you. Just that you knew that it was the same person. You had that thought on -- while you were lying there in bed. Is that right?
Defendant had raised the "pocketbook" issue during a pretrial in limine hearing. The trial court granted defendant's motion to bar the State from eliciting testimony about the allegation during direct examination but left open the possibility that it might be admissible depending on what questions were asked during cross examination:
[COUNSEL]: There's also in the discovery a lot of talk about Mr. Newman allegedly stealing pocketbooks and purses from the (inaudible) relatives in his house at a date earlier.
There's no indication of what date. There's no indication that he was ever charged with those -- or he wasn't charged with those. It's totally irrelevant to whether or not Mr. Newman is the cause of this incident.
And there's no probative value whatsoever in this case as to whether or not that occurred at some time (inaudible).
THE COURT: Mr. Weber? [PROSECUTOR]: I didn't anticipate that, Your Honor, because that's not in the written submission. I think it cuts both ways, sort of like the drug -- potential drug use does.
I think it depends on the defense's cross-examination so I guess if Your Honor's ruling is that it not be brought out on direct examination of the State's witness, I'll abide by -- happily abide by that.
But I think there's the potential for the defense to open the door on cross-examination of --THE COURT: Sounds like you agree that it may not be relevant during the direct examination but it may become relevant depending up on the extent of the cross-examination.
So I'd make the same ruling as I did with regards to the drug use issue, which is that it should not come out during direct.
And if you believe it becomes an issue during cross, then I'll hear you at sidebar as to why you should be permitted to bring it out during re-direct. Ms. Coleman, so that's granted with those provisions.
Once Epright made the pocketbook comment, defendant did not object or seek any instruction to the jury. A trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion. See Brenman v. Demello, 191 N.J. 18, 31 (2007). However, if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is "clearly capable of producing an unjust result." R. 2:10-2; State v. Rose, 206 N.J. 141, 157 (2011). In defendant's brief, he claims this issue was "Partially Raised Below." Since Epright's comment was not objected to during trial, we presume this reference is to the discussion during the pretrial in limine motion. Raising an issue pretrial does not constitute bringing a trial error to the attention of the trial court within the meaning of Rule 2:10-2. Thus, Epright's isolated comment in response to a question by defendant's counsel does not constitute plain error.
Defendant claims the reference by Terry Smith-Bey to defendant's prior incarceration could have led the jury to conclude that he had a "criminal propensity." This testimony was presented over the prosecutor's objection at the insistence of defendant's counsel.
Smith-Bey testified that defendant told him he had shot someone in the leg and the police might be looking for him. On cross examination, defendant's counsel attempted to establish that Smith-Bey was not paying close attention to the conversation with defendant and had a poor memory. On redirect, the State attempted to establish that Smith-Bey was telling the truth when he gave a statement to police that defendant admitted to him that he had been involved in a shooting. As the prosecutor concluded his examination, defendant's counsel objected that Smith-Bey had not finished his answer. Over the objection of the prosecutor, the court permitted Smith-Bey to complete his answer:
[PROSECUTOR]: And even though you're driving, even though you're not really paying attention, even though you've got the radio on, there's no doubt in your mind you heard your cousin say he was in trouble because a white guy got shot? [WITNESS]: Yeah, I heard him say something like that but sometimes --[PROSECUTOR]: Okay. Thank you, Your Honor. There's no question pending.
THE COURT: Thank you, sir. You may step down and you're excused.
THE WITNESS: All right. [DEFENSE COUNSEL]: I think he should be allowed to finish his answer.
THE WITNESS: I don't always believe -- I don't always --THE COURT: Wait a second, sir. [PROSECUTOR]: Your Honor, it's not responsive.
THE COURT: I'm sorry. What is the request, Mr. Sandilos? [DEFENSE COUNSEL]: Just to let him finish his answer.
THE COURT: The answer? Go ahead. I'm going to allow him to --[DEFENSE COUNSEL]: I asked him the answer to a yes or no question, Your Honor, and he's going to try to elaborate now about something that clearly should have been asked on cross-examination and it wasn't. THE COURT: Well, this is redirect. He doesn't have the benefit of recross. I'm going to allow him to finish his answer. Sir, why don't you go ahead and finish your answer?
THE WITNESS: I don't -- sometimes I don't believe Mike. Sometimes he tells me things and I don't always believe everything that he says, you know, so I mean, it's -- I would always question some of the things he said.
Or you know, because I was just sometime in disbelief. I just don't, you know, believe, you know, that because of what -- you know, he's been in jail before.
I don't -- you know, it's hard to believe him being that way.
Clearly, the State attempted to preclude this testimony but defendant's counsel insisted on allowing Smith-Bey to finish his answer. After Smith-Bey's mention of defendant's prior incarceration, there was a sidebar conference that is indicated "inaudible" in the transcript. Immediately following the sidebar, the court instructed the jury to disregard the comment regarding defendant's incarceration and "not take that into consideration at all during the course of any deliberations in this case."
In determining whether reversible error occurred, we must bear in mind the fact that the damaging evidence that we have cited was introduced as a result of defense counsel's insistence that Smith-Bey be allowed to complete his answer to the prosecutor's question. The Supreme Court has addressed such invited error,*fn1 noting:
We have stated that a "defendant cannot beseech and request the trial court to take a certain 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 he sought and urged, claiming it to be error and prejudicial." Thus, when a defendant asks the court to take his proffered approach and the court does so, we have held that relief will not be forthcoming on a claim of error by that defendant. [State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)).]
The Court has held that "[t]o justify reversal on the grounds of an invited error, a defendant must show that the error was so egregious as to 'cut mortally into [the defendant's] substantive rights.'" State v. Ramseur, 106 N.J. 123, 282 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). In Ramseur, the Court held that the statement that was challenged on appeal "was inaccurate in such a minor way that it cannot be said to have prejudiced Ramseur's defense." Ibid. In State v. McDavitt, 62 N.J. 36 (1972), the Court rejected as invited error defendant's claim that witness testimony elicited by defense counsel implicated defendant in prior crimes and amounted to plain error. In that case, the testimony was fleeting, as it was here. Id. at 48.
We are satisfied that the passing reference to defendant's incarceration without any detail or elaboration did not meet the Ramseur standard. Moreover, there was a clear and timely instruction to the jury by the trial court to disregard the comment and not consider it during deliberations. Therefore, the court took appropriate steps to remedy any harm that may have been caused to defendant by Smith-Bey's comment. We presume the jury understood and followed the court's instructions. See State v. Winder, 200 N.J. 231, 256 (2009) (citing State v. Manley, 54 N.J. 259, 271 (1969)).
Finally, defendant claims his sentence is "manifestly excessive." At sentencing, the State moved for the imposition of a mandatory extended-term prison sentence pursuant to N.J.S.A. 2C:44-3(d), the Graves Act, and a discretionary extended-term under N.J.S.A. 2C:44-3(a), as a persistent offender. The court found that defendant was convicted of a weapons offense in 1990 and manslaughter in 1998. After considering defendant's criminal history and the jury's finding that he attempted to kill Epright, the court concluded that defendant "has no regard for the value of human life and no regard for the laws of the State of New Jersey."
Under N.J.S.A. 2C:43-6, a person convicted of a crime may be sentenced to ordinary sentencing ranges, as well as extended-term sentencing options. Extended-term sentences impose greater punishment, most often on the basis of an offender's past record of criminality. See State v. Pierce, 188 N.J. 155, 161 (2006); State v. Dunbar, 108 N.J. 80, 87-88 (1987). Some extended-term sentences are mandatory, see, e.g., N.J.S.A. 2C:43-6(f), while other provisions confer a sentencing court with the discretion to impose an extended-term sentence when specified prerequisites are met. See Pierce, supra, 188 N.J. at 161.
Defendant does not argue that a mandatory extended range sentence was not appropriate. Rather, he claims that he should have been sentenced "more near the bottom of the mandatory extended range." The court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterring the defendant and others from violating the law) to be present.
Defendant argues that the "need to deter" is present in every criminal case and an aggravating factor should not be applied unless there is "unique or special need for deterrence that differentiates a given case from others involving the same or a similar offense." As authority for this conclusion, he cites State v. Martelli, 201 N.J. Super. 378 (App. Div. 1985). Martelli involved a first offender who was sentenced to seven years on a plea to sexual assault. Id. at 380. We reversed because the trial judge failed to provide the factual basis supporting its findings of particular aggravating and mitigating factors. Id. at 386. Conversely, the trial judge here made extensive findings. As to the risk that defendant would commit another crime, the court found "Mr. Newman has been unable to stay out of any type of criminal trouble for much of his adult life."
As to factor six, the court found that the seriousness of the present offense combined with the extent of defendant's criminal record required "full weight" be applied to this factor. The court noted the nature of the offense:
Particularly, the court does find defendant's actions to be particular [sic] egregious. The jury found that Defendant shot the victim with a shotgun, with an attempt to kill him and rob him. What makes these facts particularly troubling are the callousness of Defendant's actions. The victim was unarmed and unsuspecting of such an incident.
And as to factor nine, the court found that the defendant was "a repetitive offender and there is a need to deter him from violating the law . . . ." The court found there were no factors that mitigated in defendant's favor. These findings fully comply with the court's obligations under N.J.S.A. 2C:44-1.
Defendant's observation that the victim "has made a remarkable recovery," ignores Epright's victim statement where he details the pain he has suffered and the physical limitations he is left with and how they are expected to worsen.
Defendant's attempt to trivialize this crime by arguing that the attempted murder charge was a "horrible shotgun wound to the thigh" lacks sufficient merit to warrant any further discussion.