October 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SUZETTE HINDS-MOHAMMED, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-12-0973.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2012
Before Judges Parrillo, Sabatino and Fasciale.
Tried by a jury, defendant, Suzette Hinds-Mohammed, was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. After merging the weapons offenses, the court sentenced defendant to a fifteen-year term subject to an eighty-five percent parole ineligibility period on the attempted murder charge and a concurrent seven-year term on the second-degree weapons conviction. Appropriate fees and penalties were also assessed. Defendant appeals, and we affirm.
Two days after Devon Robinson obtained a temporary restraining order against defendant, forcing her out of his apartment, she shot him twice, once in the head and once in the hand, at a scenic overlook off of Interstate 78 in Somerset County. The facts leading up to this crime are as follows.
By all accounts, the couple had a troubled, on-and-off again romantic relationship dating back to 1999. The relationship deteriorated over defendant's suspicions of Robinson's involvement with other women. On October 13, 2006, while Robinson was watching television, defendant confronted him with her suspicions, dumped a jug of water on him, and then took several pills that turned out to be Vitamin C. As a result, four days later, on October 17, Robinson obtained a temporary restraining order (TRO) against defendant, barring her from his apartment, among other things.
According to the State's proofs, just two days later, on October 19, defendant, who had been staying at a hotel, called Robinson to arrange a meeting. Shortly after, she picked him up, told him she needed money, and the two went to look at an apartment in Somerville that defendant said she wanted to rent. En route, defendant appeared to become lost. She got off I-78 at Exit 33, parked briefly in a dark alley, and then re-entered I-78 before exiting the interstate again at a scenic overlook. The location was essentially a hilltop parking area with views from a cliff-like elevation accessed from the highway by a long, inclined driveway. Defendant then told Robinson she needed to use the bathroom and exited the vehicle. The overlook area was otherwise empty.
Upon her return to the vehicle, defendant asked Robinson to open the back hatch. Coming from the rear, she approached Robinson on the passenger side to ask for tissues. As Robinson turned first toward the center console for the tissues and then turned back toward defendant, she shot him in the right side of the head, saying "you won't fuck me over anymore." When Robinson reached for the gun, defendant shot him again in the hand.
Still alive, Robinson managed to get out of the vehicle and wrestled defendant to the ground, where he gained control of the gun. He pushed away and got back into the vehicle in the driver's seat, but defendant ran to the passenger side and jumped into the car as well. Robinson then took the keys and gun and started walking back down the incline toward the interstate. As defendant followed him, Robinson used his cellular telephone to call 9-1-1 and report the shooting, dropping the gun in the process. Seeing defendant on the other side of the ramp trying to flag down passing cars on the interstate, Robinson doubled back to the vehicle and started to drive down along I-78 to a hospital. Apparently still on the phone with the 9-1-1 operator, he reached the I-287 merge in Bridgewater, where the operator told him to stop and wait for police.
Responding to Robinson's call, authorities quickly reached the scene
shortly before 8:30 p.m. Nearing the turn-off for the overlook, one of
the responders, Bernards Township Police Officer William Seiple,
received another report of someone walking along the interstate.
Officer Seiple continued along I-78 for about a quarter-mile before
seeing defendant crouched
behind a guard rail; as he approached her, she stood and waved to him.
The officer ordered her to the ground and called for back-up, at which
point defendant was handcuffed, frisked and allowed to sit on the
rail. The officer asked defendant whether she was injured, inquired
about the location of the gun and then administered Miranda*fn1
Meanwhile, Robinson was transported to Morristown Memorial Hospital. The trauma surgeon who treated him determined that the bullet that entered his right ear traveled downward and lodged in his jaw, and as a result could not be removed without causing more damage. The surgeon further determined that, given the shot's location near Robinson's airway, brain, major arteries and spinal cord, it easily could have caused paralysis, stroke, brain damage or death had its trajectory been different by a matter of centimeters.
The gun -- a 22-caliber, five shot, single-action revolver with three spent casings and two live rounds inside -- was located on the pavement of the driveway leading up to the overlook. The weapon's leather storage bag was later recovered from beneath the vehicle's driver's seat.
Defendant was taken to the Somerville Police Station where she was again given her Miranda warnings, which she acknowledged and waived. At around 11:15 p.m., she gave a statement to State Trooper Marc Pillus and another officer. During the interview, the entirety of which was audio-recorded, defendant remained very talkative and eager to speak about what happened; originally from Jamaica, she had a fairly strong accent and was very demonstrative, using hand gestures and at times acting out what she alleged had occurred.
In her statement, defendant gave an account of the shooting that conflicted with Robinson's. According to defendant, Robinson, not she, was driving and wanted to stop at the overlook to use the restroom. After the two exited the vehicle, Robinson choked and punched her. During the resulting struggle, she tried to get back into the vehicle as Robinson tried to force her out. She then pulled the gun from the glove compartment and shot him. The fight then spilled to the ground, as Robinson kicked and punched her while trying to take the gun. When he finally got the weapon, he walked away and she fled down a hill.*fn2
According to defendant, she had obtained the revolver from a pawn shop for protection while living in Georgia. After the dealer explained how to use it, she put the gun in its storage bag and then left it in her vehicle's glove compartment unused and untouched until the night of the shooting.*fn3
Defendant reiterated her account of the shooting at trial. She also explained that Robinson, who was born in Jamaica and immigrated to the United States in 1990, had repeatedly asked her to marry him to avoid deportation and that on the night of the shooting, the couple argued about her refusal to marry him. According to defendant, while Robinson was attacking her, he accused her of allowing him to be deported to Jamaica.
Robinson denied ever asking defendant to marry him and testified that it was defendant who actually made the proposal. He declined after consulting with an immigration attorney, who advised that getting married would not help him in any way with his immigration issues.*fn4 At trial, Earl Laidlow, an immigration attorney who had represented Robinson during his removal proceedings, testified that Robinson had been a lawful resident with a green card since the 1980s; that he thus had a valid remedy under immigration law to prevent his removal; and that his marriage -- to defendant or anyone else -- would not have provided any such benefit.
Evidently crediting the State's proofs, the jury rejected defendant's claim of self-defense and convicted her of attempted murder and related weapons offenses. On appeal, defendant raises the following issues:
I. THE STATE'S IMPROPER RE-INTERPRETATION OF DEFENDANT'S STATEMENT TO POLICE BY MEANS OF A DEMONSTRATION USING A MANNEQUIN EXCEEDED THE BOUNDS OF A FAIR TRIAL BY FABRICATING EVIDENCE. THIS DEMONSTRATION ALSO CONSTITUTED IMPROPER LAY EXPERT OPINION WHICH USURPED THE JURY'S FUNCTION IN THE CRITICAL AREA OF DETERMINING CRIMINAL RESPONSIBILITY, AND IMPERMISSIBLY BOLSTERED THE STATE'S OTHER EVIDENCE. THE TRIAL COURT THEN COMPOUNDED THE ERROR BY EFFECTIVELY ENDORSING THE STATE'S IMPROPER ACTION.
II. TESTIMONY THAT A DOMESTIC VIOLENCE RESTRAINING ORDER HAD BEEN ISSUED AGAINST THE DEFENDANT IMPROPERLY SUGGESTED A PRIOR JUDICIAL
DETERMINATION OF GUILT IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
III. THE TRIAL COURT ERRONEOUSLY FOUND AGGRAVATING SENTENCING FACTORS THREE AND NINE WITHOUT ADEQUATE EVIDENTIARY SUPPORT IN THE RECORD. THIS COURT SHOULD VACATE AND REMAND FOR RESENTENCING. (NOT RAISED BELOW).
A. THERE IS NO EVIDENTIARY SUPPORT IN THE RECORD FOR FINDING THAT MS. HINDS-MOHAMMED IS LIKELY TO REOFFEND.
B. THERE IS NO BASIS IN THE RECORD FOR FINDING A NEED FOR DETERRENCE AS AN AGGRAVATING FACTOR.
We reject each of these arguments as without merit.
At trial, Trooper Pillus, who interviewed defendant on the evening of the shooting, re-created her statement with a demonstration using a life-sized mannequin, describing in detail the gestures and re-enactments he claimed she made. This followed a N.J.R.E. 104 hearing at which Trooper Pillus explained that during his interview of defendant, he demonstrated certain motions and movements that she described -- regarding how she alleged Robinson was trying to force her from the vehicle before she grabbed her gun and shot him -- and she agreed with each motion as he demonstrated it. The court permitted use of the mannequin while the defense noted its sole objection -- the lack of video from the interview to substantiate the trooper's depictions.
At trial, to show that defendant's version conflicted with the expert and physical proofs of the path of the bullet, Trooper Pillus testified as to how defendant herself described the struggle and her use of self-defense. He further testified as to how defendant and he, based on her descriptions, physically demonstrated the manner in which the shooting occurred and the relative positions of defendant and Robinson at that time. When the prosecutor then asked the trooper to use the mannequin to "demonstrate what the defendant demonstrated" during the interview, the court intervened, noting that "I'm going to stop it there. The defendant presumably did not have a mannequin at the time." Responding to the court's concern, the trooper asserted that during the interview, he demonstrated physically what Robinson was doing, based on defendant's description, and she agreed and at times made demonstrations herself. The trooper was then allowed to use the mannequin to depict how he and defendant had acted out her description of the shooting.
Immediately after the testimony, the court provided the jury a cautionary instruction on demonstrative evidence:
Demonstrative evidence is permissible if in the view of the examiner, [the prosecutor], it will help the jury to understand the testimony, okay? I caution you here, however, that it's not really the Detective's testimony that you are hearing, it is the statement, or the words spoken by [defendant] that come through the filter of the Detective. And so when the Detective makes, or demonstrates on the dummy, you have to take that with some caution, because the dummy wasn't present in the interview room at the Somerville Station, okay? So, this is the witness' best interpretation, using the mannequin, to show what he thinks the speaker, [defendant], was saying.
Now you're going to hear the tape [of defendant's interview]. That's the best evidence of what [defendant] said.
Defendant voiced no objection to this instruction. And apart from defense counsel's generic challenge, he did not object to any portion of the prosecutor's direct examination wherein the trooper depicted defendant's verbal and physical rendition of the encounter. In fact, defense counsel used the mannequin during his cross-examination of Trooper Pillus and asked the trooper to again demonstrate with the mannequin how defendant alleged Robinson had attacked her, to better illustrate the defense theories.
Defendant now contends that because defendant never used a mannequin during her statement, because her gestures were never electronically recorded, and because all the physical conditions extant at the time of the shooting cannot be replicated, the State's contrived and choreographed demonstration could not reliably reconstruct the interview and was therefore wrongly allowed. We disagree.
The term "demonstrative aids" refers to items that serve as "'aid[s] to the presentation and understanding of the evidence.'" Heinzerling v. Goldfarb, 359 N.J. Super. 1, 8 (Law Div. 2002) (quoting United States v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998)). "There is nothing inherently improper in the use of demonstrative or illustrative evidence." State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J. 466 (1997); see State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Raso, 321 N.J. Super. 5, 18-19 (App. Div.), certif. denied, 161 N.J. 332 (1999). Demonstrative or illustrative evidence may be evidence that replicates the actual physical evidence, Scherzer, supra, 301 N.J. Super. at 434, demonstrates some matter material to the case, State v. Gear, 115 N.J. Super. 151, 153-54 (App. Div.), certif. denied, 59 N.J. 270 (1971), or illustrates certain aspects of an expert's opinion. Raso, supra, 321 N.J. Super. at 18-19. It is in the nature of a visual aid - "a model, diagram or chart used by a witness to illustrate his or her testimony and facilitate jury understanding." Macaluso v. Pleskin, 329 N.J. Super. 346, 350 (App. Div.), certif. denied, 165 N.J. 138 (2000).
In general, the trial court enjoys wide latitude in admitting or rejecting such replicas, illustrations and demonstrations and in controlling the manner of presentation and whether or not particular items are merely exhibited in court or actually received in evidence. See, e.g., Scherzer, supra, 301 N.J. Super. at 434-45; Feaster, supra, 156 N.J. at 82; Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 611 (2004). That is, the trial court controls not only the admission of this type of evidence, but also the form and limits of its presentation. Although discretionary, the admissibility of such evidence turns, in part, on whether it "sufficiently duplicates the original event." Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 14 (App. Div.), certif. denied, 177 N.J. 490 (2003); see also Balian v. Gen. Motors, 121 N.J. Super. 118, 126 (App. Div. 1972), certif. denied, 62 N.J. 195 (1973). Not only must such evidence be authenticated, N.J.R.E. 901, and relevant, N.J.R.E. 401, its probative value must not be offset by undue prejudice, unfair surprise, undue consumption of trial time, or possible confusion of issues due to the introduction of collateral matters. Balian, supra, 121 N.J. Super. at 127; N.J.R.E. 403.
We give substantial deference to a trial court's evidentiary rulings. See State v. Ramseur, 106 N.J. 123, 266 (1987). Where the trial court makes a discretionary ruling, that decision will not be reversed on appeal absent a showing of an abuse of discretion. In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974). A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
In State v. Feaster, supra, the Court found no abuse of discretion where a trial judge allowed the State to use a mannequin with a knitting needle inserted into its head to show the trajectory of a bullet through the victim's head. 156 N.J. at 81-84. The defense in Feaster attempted to defend the shooting by claiming that it had been accidental. Ibid. However, the demonstrative evidence of the bullet's trajectory, as illustrated by the mannequin, supported the State's theory that the shooting was intentional and that the victim was seated, not standing, when he was shot. Ibid. Thus, the demonstrative evidence, the mannequin, was deemed relevant and of "significant probative value." Ibid.*fn5
Granted, the use of the mannequin in those cases did not involve the degree of manipulation engaged in here, but that is not dispositive. Other than defendant, only Trooper Pillus could testify as to defendant's gestures and motions during the interview. His recounting of that dialogue, therefore, was from personal observation and knowledge, and his use of a mannequin to illustrate defendant's statement served simply as a visual aid, allowing the jury to better understand his testimony.
Defendant's present claim that use of the mannequin was misleading and allowed for misinterpretation fails to persuade, especially since trial counsel, who was in a far better position to assess the display, lodged no objection to the substance of Trooper Pillus' rendition. Even now, defendant offers no particularized indication of how the simulation negatively affected the ability of the jury to assess the evidence. In any event, defendant could easily have pointed out to the jurors any discrepancy, distortion or inaccuracy, and she had the opportunity to test the credibility of the witness on cross-examination. Instead, as noted, defense counsel himself used the mannequin to advance the defense theories.
Demonstrative evidence that accurately portrays the circumstances sought to be shown ought not to be rejected simply because it also tends to be prejudicial. Here, the probative value of the use of the mannequin far outweighed any possible prejudice. See N.J.R.E. 403; see also State v. Morton, 155 N.J. 383, 453-54 (1998), cert. denied sub nom. Morton v. New Jersey, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). According to the trauma surgeon's testimony, Robinson had been shot at a downward angle in the right side of the head, but defendant's description of their struggle and positioning inside the vehicle during the encounter conflicted with that evidence. According to the defense, only Robinson's left side was exposed to the gun's muzzle as his left hand was gripping defendant's right hand, which held the gun at an upward, not downward, angle. Therefore, the use of the mannequin as a demonstrative aid assisted the jury in visualizing defendant's account and better evaluating it in light of conflicting evidence, namely Robinson's own injuries and testimony.
We are satisfied that the court did not abuse its discretion in allowing use of the mannequin in this case as a demonstrative aid. Such evidence was admitted only after a Rule 104 hearing established that its probity outweighed any potential for prejudice, and the judge correctly issued a cautionary instruction as to its proper use, stressing that the audio-recorded statement was the best evidence of what defendant said. Moreover, in his use of the mannequin, Trooper Pillus was not merely replicating the physical conditions extant at the time and place of the shooting, but was recounting defendant's description of those conditions. And lastly, defense counsel had ample opportunity to refute the trooper's account. We do not hold that a demonstrative mannequin is appropriate in every case to illustrate for a jury a defendant's gestures made during a police statement that is not video-recorded, but conclude that in the circumstances presented here, the court properly exercised its discretion to allow it.
A related challenge is to Trooper Pillus' testimony pointing out certain inconsistencies between defendant's version of events and the victim's actual injuries. Defendant now objects to this testimony as improper opinion evidence, even though it was first elicited at trial by defense counsel. We reject this contention as well.
As with demonstrative aids and other evidential rulings, "[t]he admissibility of opinion evidence rests within the discretion of the trial court," and is reviewed for abuse of discretion. State v. LaBrutto, 114 N.J. 187, 197 (1989). Lay opinion is appropriate if the testimony offered is not "scientific, technical or [representative of] other specialized knowledge," as required by N.J.R.E. 702, is rationally based on the witness's perception, and would assist the jury in determining a fact in issue. N.J.R.E. 701; see State v. Johnson, 120 N.J. 263, 293-95 (1990) (lay witness can compare footprints and testify that footprints found at scene match those of defendant). Thus, a layperson can offer an opinion regarding matters of common knowledge and observation, State v. Bealor, 187 N.J. 574, 586-87 (2006), but not of such an esoteric nature as to be beyond the understanding of the ordinary layperson, State v. Clowney, 299 N.J. Super. 1, 19 (App. Div.), certif. denied, 151 N.J. 77 (1997), and thus cross into the expert's realm. State v. Kittrell, 279 N.J. Super. 225, 235-36 (App. Div. 1995). Apropos here, the opinion testimony of police officers who are not called as experts must be "firmly rooted in the [officers'] personal observations and perceptions" as lay witnesses. State v. McLean, 205 N.J. 438, 459 (2011); see also State v. DeLuca, 325 N.J. Super. 376, 393 (App. Div. 1999) ("[T]estimony of a police officer regarding his observations of footprints in the snow and his conclusion that the footprints were similar to the prints left by defendant's boots is not a matter of expert opinion."), aff'd as modified, 168 N.J. 626 (2001).
In this case, Trooper Pillus' testimony in no way related to technical or scientific analysis. Rather, in pointing out inconsistencies between defendant's version of events and Robinson's actual injuries, the trooper simply offered a view of what he saw and knew from defendant's own account. These were matters readily recognizable and well within his capabilities to observe. We discern no error in its admission, especially since invited by defendant's own counsel. See State v. Kemp, 195 N.J. 136, 155 (2008).
Defendant next contends, for the first time on appeal, that testimony about the TRO issued against her two days before the shooting was inadmissible under N.J.R.E. 404(b) as suggesting a propensity to commit the attempted murder with which she was charged. There was no error here, much less plain error.
Not only did defendant fail to object to such testimony, throughout the trial she utilized the existence of TROs by each party against the other during their relationship to further her essential defense of self-defense. For instance, in opening statements, defense counsel portrayed the couple's relationship as one filled with "verbal intimidation" and "periods of verbal and physical abuse" by Robinson in part due to his uncertain immigration status. According to the defense, Robinson obtained at least three TROs because defendant refused to marry him and help him obtain permanent immigration status. On her direct examination, defendant further explained that if she ever disagreed with Robinson, he would just "invent some story" and go to the police to get a restraining order against her.
Finally, in closing, defense counsel emphasized as a central part of the defense:
[T]hroughout this eight, perhaps nine days of trial, and testimony, we heard that [defendant] and [Robinson] were engaged in a very abusive relationship over almost eight years. Mr. Robinson has been abusive to [defendant] emotionally and physically. But it doesn't end there. Mr. Robinson was also very manipulative and very controlling. And what do I mean by that?
When they first moved into the apartment, the one-bedroom, Mr. Robinson did not want [defendant's] name on their lease.
He wanted to make sure that he alone was on this lease so if he had to, he could have her removed any time he wanted to. He was controlling in the fact that it had to go this way. If it did not go his way, he'd go ahead and file a domestic violence complaint. And he did that three times. The last time was on October 16.
Given defendant's failure to object below and, indeed, her own affirmative use of this evidence in support of her self-defense claim, she cannot now be heard to complain about its introduction into the case. R. 2:10-2; State v. Gore, 205 N.J. 363, 382-83 (2011). In any event, this evidence is admissible under N.J.R.E. 404(b) as it tends to prove defendant's motive for shooting Robinson and is not unduly prejudicial under N.J.R.E. 403. Alternatively, in light of its temporal proximity and unquestionable relatedness to the shooting in issue, the TRO evidence may be considered intrinsic to the charged crimes and defendant's explanation of the critical events, and therefore exempt from the strictures of N.J.R.E. 404(b). State v. Rose, 206 N.J. 141, 182 (2011). Either way, we find no abuse of discretion, much less plain error, in the admission of this highly relevant and much belatedly challenged evidence.
Lastly, defendant complains that her mid-range sentence of fifteen years is excessive. We disagree.
In imposing sentence, the court applied mitigating factors seven (no prior criminal history) and eight (conduct result of circumstances unlikely to recur), and aggravating factors two (gravity and seriousness of harm), three (risk of committing another offense), and nine (need to deter), and found these considerations to be in equipoise. Although defendant had no criminal history, in finding a risk of recurrence, the court stated that there was uncertainty as to whether defendant had "an adequate understanding of the nature of the act, or the consequences of [her] conduct."
We are satisfied that the court imposed a sentence in accordance with relevant principles and guidelines and properly applied both aggravating and mitigating factors supported by competent credible evidence. See State v. Roth, 95 N.J. 334, 363-66 (1984); State v. Kromphold, 162 N.J. 345, 355 (2000). We find no abuse of discretion here.