October 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONALD GEORGE JOHNSON, A/K/A DONALD G. JOHNSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-08-0768.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2012
Before Judges Cuff and St. John.
Defendant and co-defendants Elijah Trammell and Michael Britton were indicted by a Union County grand jury under Indictment No. 06-08-0768 for first-degree murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one); first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:5-2 (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5 (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count four). The charges arose from the shooting of a man in Plainfield. Britton's trial was severed from defendant's. Trammell entered into a plea agreement with the State and testified against defendant. Trammell's testimony provided the bulk of the substantive, credible, and incriminatory evidence against defendant.
Defendant was tried by a jury over twelve days in January 2009. The jury returned a verdict of guilty on all counts as charged, with the exception of the murder count, for which defendant was found guilty of the lesser-included offense of first-degree aggravated manslaughter.
The trial judge sentenced defendant to twenty-five years imprisonment on count one, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive term of five years imprisonment with one year of parole ineligibility on count three. Counts two and four were merged into count one. The appropriate fees, assessments, and penalties were also imposed.
The trial record reveals that on March 14, 2006, Tyrell Brighton, William Brevard, and Robert Codeys were walking home along Liberty Street in Plainfield. As they got to the railroad trestle, shots were heard and they dropped to the sidewalk. When they got up, they saw that Codeys had been shot. There was blood streaming from his head and he was not breathing. A car sped away. Initially they did not identify the shooter.
Several days later, Brevard and Brighton went to the police and stated that they had seen Hakeem Robinson shoot their friend. Subsequently, they admitted that this was a lie and that neither had seen the person who shot Codeys. Before the men recanted, the police undertook an investigation and spoke to Rotania Grenald who provided an alibi for Robinson. She did, however, tell the police that at approximately the same time as the shooting she received a call from Trammell. He left a message on her telephone telling her to inform Robinson to get off the streets since there had been a shooting on Liberty Street and there might be some retaliation.
Trammell was questioned and charged with the murder of Codeys. As a result of a plea bargain, he agreed to testify against defendant. Trammell was a close friend of Michael Britton and knew defendant.
They all socialize together in the Clinton Avenue neighborhood in Plainfield. Trammell admitted that the Clinton Avenue group, known as the "Clinton Avenue Posse," did not get along with the group who lived in the neighborhood around Liberty Avenue, known as the "Lib Side" gang.
On March 14, Trammell attended a memorial service for Leonard James, a friend who had died a year earlier. Defendant was at the service and had a small automatic weapon in his pocket. Trammell stated that Britton and his twin brother, Mitchell, got into defendant's car, with Britton driving. After dropping off Mitchell, they continued toward Liberty Village, a housing development on Liberty Street. Trammell stated that defendant said, "[i]f we see any niggers outside we going to get on 'em."
As defendant's car pulled onto Fifth Street, defendant pulled out a small gun, reached across Britton, and fired at a white Cadillac known to belong to someone in the Liberty Street group. They pulled onto Liberty Street at which point defendant instructed Britton to slow down. Defendant then pulled a different gun from under the seat and fired out the window several times in the direction of the railroad trestle. Trammell saw someone lying on the ground and also saw defendant throw the gun out the window. Much of Trammell's pretrial statement to police was not consistent with his trial testimony, but ultimately he implicated defendant in the murder of Codeys.
Marcus Jackson and Mitchell Britton each testified at defendant's trial. Jackson stated that he saw defendant at the memorial and saw him reach for his waistband. However, in his statement to police, he stated that he saw a gun and heard defendant state, "you know what time it is." Jackson disavowed this statement at trial. Mitchell Britton stated that he did not see defendant with a gun and never heard the statement "you know what time it is." Mitchell also denied getting into defendant's car that night.
In addition to the testimony of these witnesses, the State offered testimony concerning defendant's behavior in the ensuing weeks after the murder. On March 31, the police arrived at the home of Lauren Jackson, defendant's girlfriend. They seized her gold Dodge Intrepid, explaining there had been an "altercation," possibly involving her car. She learned that defendant was a suspect in a murder. Shortly after the car was seized, Jackson spoke to defendant and told him about the car being seized. She did not have a clear recollection but she may have also told defendant about his murder arrest warrant.
On April 4, Eddie Lorenzo sold a car to defendant. According to Lorenzo, defendant, who gave the name Donovan Brass, came into his dealership and offered to purchase a car for $1900 in cash. Because the individual had no driver's license or insurance, Lorenzo refused. Defendant left and returned with a copy of Jackson's credentials. Lorenzo spoke with Ms. Jackson and then sold defendant a Ford Contour.
On April 23, New York City Police Lieutenant Jeffrey Peterson received a call about a traffic incident on Martin Luther King Expressway in Staten Island, New York. He responded to the scene and saw a Ford Contour being towed. He questioned defendant about his identity, determined there was an outstanding warrant, and arrested him. Later that same day, New York City Detective Steven Mattei spoke with defendant. Defendant asked him "you are not homicide from Jersey?" When the detective replied in the negative, defendant told him "well, they were looking for me for a homicide in Jersey." Defendant was ultimately arrested for the murder of Codeys.
This appeal ensued. On appeal, defendant raises the following issues for our consideration:
THE ELICITATION BY THE PROSECUTOR, COUPLED WITH HIS COMMENTS IN SUMMATION OF PREVIOUSLY BARRED INFORMATION LINKING THE DFENDANT WITH GANG ACTIVITY, DENIED DEFENDANT DUE PROCESS OF LAW. THIS ERROR WAS COMPOUNDED BY THE FAILURE OF THE TRIAL JUDGE TO GIVE A LIMITING INSTRUCTION TO THE JURY. (Not Raised Below).
THE TRIAL JUDGE ERRED IN GRANTING THE STATE'S REQUEST TO HAVE THE DEFENDANT'S BEHAVIOR DEFINED AS "FLIGHT" INDICATING CONSCIOUSNESS OF GUILT.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We start our analysis with defense counsel's overarching argument that testimony concerning defendant's association with gang activity denied him due process of law. We disagree.
Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). See also State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
On October 17, 2008, the parties attended a pretrial hearing before the trial judge to determine the admissibility of certain N.J.R.E. 404(b) evidence. The State sought to introduce evidence of defendant's relationship to the Clinton Avenue Posse, and its retaliatorily violent history with the Lib Side gang, in order to prove motive for the murder. The State's theory was that defendant shot Codeys as part of a continuing "tit-for-tat shooting-violent act-shooting-violent act" between the two rival gangs. The trial judge excluded expert testimony and "gang-related activity" evidence as violating the test enunciated in State v. Cofield, 127 N.J. 328, 338 (1992). However, the trial judge did allow the State to introduce "motive evidence" that would allow it to "prove that the shootings were not random" but were specifically directed towards a group of people that lived in a certain area of Plainfield.
Prior to opening statements, the judge held a conference to determine, in part, what words other than "gang" would be appropriate to describe the affiliations of neighborhood groups. The trial judge advised "don't use the word gang, use the word group." Defendant's attorney asked if it was appropriate for him to refer to prior incidents between the gangs. The following discussion occurred:
THE COURT: Okay. All I could tell you is if you bring in incidents I want to make sure [defendant] understands that as a strategy it's being brought into the case on purpose with the understanding that the door has been opened. So if you want to bring into the case that [Trammell] has personal animosity with Lib Side, if you want to bring into the case that [Trammell] was deeply rooted in a group called Clinton Avenue, if you want to bring into evidence in this case that Trammell was jumped at his job at Target three months or so before the shooting, if you want to bring into the case that Trammel was in a group of people a month before the murder when somebody in that Cadillac from Liberty Street, from Lib Side shot into -- do you remember that? [DEFENSE COUNSEL]: Uh-huh.
THE COURT: . . . If that is the way you want to try your case all I'm telling you is I want to make sure [defendant] understands that it is a strategic decision that is being made after thorough consultations with you, and he's satisfied that is the decision that should be followed and that he understands that the door is being opened. [DEFENSE COUNSEL]: I'm not sure what the door is being opened to, but I fully plan to explore that, yes.
At trial, defendant's attorney began cross-examining Trammel on prior gang-related incidents. The State objected, and the prosecutor noted that, "we are moving into the area where we've now opened the door into allowing in the entire history for Clinton Avenue Posse versus Lib Side because this is what your Honor addressed when we discussed this case pre- trial." Specifically, the prosecutor stated that if defense counsel was going to elicit why Trammel had a vendetta against Codeys and the Lib Side gang, the State should be allowed to present all other evidence showing that there has been an ongoing feud between the two gangs.
Defendant's attorney supported his strategy and questioning, stating that "[i]f I do it in a way that the Court rules opens the door to all the gang testimony, I will live with that." Defendant agreed with his attorney's strategy after direct questioning from the trial judge. After further discussion, defendant's attorney decided that he would withdraw his questioning, while also reserving the opportunity to re-raise it "[w]ith the understanding that I may ask it again knowing what the consequences would be."
The next day at trial, the State argued that defendant's counsel had opened the door to gang evidence in light of the testimony he elicited. The prosecutor therefore requested that the State be permitted to explore the relationship between the rival gangs. Defendant's counsel responded by arguing that his question to Trammell regarding the shooting by the white Cadillac explored Trammell's potential personal motivation to kill Codeys, not the motive of the gang to which he belonged.
The court agreed with defendant's counsel, explaining that there was no reason to change his original 404(b) ruling.
The trial judge did, however, add the following to his ruling:
Certainly, on redirect, [the State] can probe into the full relationship Trammell had with Lib Side, because that goes directly to undermining the defense's position that Trammell had a reason to act on the evening in question, but to bring in the expert at this point, based on the questions that [defendant's counsel] has asked about the res gestae events that occurred that night, I think, would be inappropriate.
So, at this point, the expert is still out, and the introduction into the case history about the gang beef that has occurred for the last several years, I'm going back, I believe, to a death that occurred 10 or 15 years ago, and all of the brutal acts of violence that have occurred between the groups, for the same reasons that I gave on January 5th, I believe should be excluded at this point.
On redirect, the prosecutor elicited testimony from Trammell comparing the Clinton Avenue Posse to notorious gangs like the Bloods, Crips, and Latin Kings. He also specifically affiliated defendant with the Clinton Avenue Posse. Additionally, the State referred to a person "from the other side of Plainfield" as a member of "another gang" during its questioning of Detective Francis Wilson. Defense counsel immediately objected, arguing that the prosecutor "said the magic word." The trial judge and the prosecutor stated that the word had already been used multiple times throughout the trial. Defense counsel replied, "That's fine. I just wanted to make sure that we didn't cross another line. That's all." Direct examination continued, and no curative instruction to the jury was rendered.
The State next examined Plainfield Detective Harvey Barnwell, who acknowledged that gangs existed in the Plainfield area. The prosecutor asked Barnwell about "members of the Lib [S]ide gang[.]" There was no objection from defense counsel. The prosecutor further mentioned gangs during his summation. He referenced Trammell's testimony about "gangs," and characterized the homicide as "retaliation[.]" He further referred to the killing as a "gang involved homicide . . . ." No objections were made by defense counsel.
Where the "opening the door" doctrine is concerned, the admission or exclusion of evidence involves a weighing process set out in N.J.R.E. 403. State v. James, 144 N.J. 538, 554 (1996). A trial court has "broad discretion in making relevance and admissibility determinations under N.J.R.E. 401, 402, and 403," and those determinations will not be disturbed on appeal "absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom., Lydon v. Silverman, 196 N.J. 466 (2008).
"The 'opening the door' doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to . . . admissible evidence that generates an issue." James, supra, 144 N.J. at 554. The doctrine "allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." Ibid. The doctrine "provides an adverse party the opportunity to place evidence into its proper context." Alves v. Rosenberg, 400 N.J. Super. 553, 564 (App. Div. 2008).
Here, defendant opened the door on Trammell's cross-examination by eliciting testimony that he had been assaulted at work and had been shot at by someone in the white Cadillac. This was admissible evidence, and the judge properly determined that the State could "probe into the full relationship Trammell had with the Lib Side, because that goes directly to undermining the defense's position that Trammell had a reason to act on the evening in question." Thus, the admission of the statement under the "opening the door" doctrine permitted the State to respond to defendant's attack on Trammell's testimony and to place his testimony in the proper context, that being the violence between the Clinton Avenue Posse and the Lib Side gang. In addition, defendant suffered no prejudice by the reference to gangs, since defendant sought to discredit Trammell's testimony and implicate him as the shooter.
In sum, defense counsel's trial strategy in questioning Trammell opened the door to admit the testimony concerning the Clinton Avenue Posse and the Lib Side gang, the admission of which did not constitute an abuse of discretion or manifest denial of justice. Lancos, supra, 400 N.J. Super. at 275.
Defendant argues the trial judge incorrectly issued a "flight" instruction, rather than a generic "consciousness of guilt" instruction. The judge charged the Model Jury Charge on flight. Model Jury Charge (Criminal), "Flight" (2010). Defendant did not object to the charge at trial, and consequently, we review pursuant to the plain error standard.
R. 2:10-2; State v. Morton, 155 N.J. 383, 421 (1998). "Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights." Ibid.
We begin with "the well-established principle that certain conduct of a defendant subsequent to the commission of a crime may indicate his consciousness of guilt." State v. Phillips, 166 N.J. Super. 153, 159 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980). In particular, flight from custody or the scene of a crime is generally admissible to draw an inference of guilt, State v. Mann, 132 N.J. 410, 418 (1993), if done with the purpose of avoiding apprehension, prosecution, or arrest. Id. at 418-19; State v. Ingram, 196 N.J. 23, 46 (2008); State v. Wilson, 57 N.J. 39, 49 (1970). "Mere departure" is not enough. State v. Long, 119 N.J. 439, 499 (1990).
Defendant contends that his actions subsequent to the shooting provided an insufficient basis for a flight charge. We disagree.
Whether sufficient evidence supports a flight charge is left to the trial court's discretion. Long, supra, 119 N.J. at 499. Flight is distinguished from mere "departure," which is not by itself a basis for a flight charge because it does not alone imply guilt. Sullivan, supra, 43 N.J. at 238-39. For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.
Here, there is evidence of "unexplained circumstances" beyond mere departure, which reasonably supports an inference that defendant fled with a consciousness of guilt in an effort to avoid accusation. See Sullivan, supra, 43 N.J. at 238-39. For instance, buying the car under an assumed name, limiting contact with his girlfriend, traveling to New York, where he was arrested, and asking Detective Mattei "you are not homicide from Jersey?" We therefore conclude that the court did not err in giving the flight charge as such an instruction finds ample justification in the evidence.
Defendant contends that his sentence is excessive. We disagree.
"Appellate review of sentencing decisions is . . . narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court is obliged to affirm. State v. Cassady, 198 N.J. 165, 180 (2009). A sentence that adheres to the applicable guidelines should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 608, 612 (2010).
The aggravating and mitigating factors applied were adequately supported by evidence in the record and since defendant's sentence is within appropriate statutory terms, we have no basis to disturb the aggregate sentence.
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