August 26, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RAHEEM HARRITY a/k/a MALIK COX, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-3169.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Axelrad, Nugent and Haas.
Tried to a jury for shooting and killing Alejandro Castro and Alejandro Soto, defendant Raheem Harrity was found guilty of two counts of aggravated manslaughter, one count of conspiracy, and two weapons offenses. The court sentenced him to an aggregate prison term of life plus thirty years. In this appeal, defendant argues that his conviction should be reversed because the prosecutor withheld some discovery until shortly before trial and threatened a witness with perjury; witnesses gave improper testimony four times during the fourteen-day trial; and the court erred in its charge to the jury. Defendant contends these errors, individually and cumulatively, deprived him of a fair trial. He also contends the verdict was against the weight of the evidence and his sentence was excessive. Having considered defendant's arguments in light of the record and controlling law, we affirm his convictions and sentence.
The State developed the following proofs at trial. On May 27, 2004, at approximately 8:00 p.m., on Sixth Street between Erie and York Streets in Camden, thirty-two year-old Alejandro Soto and eighteen-year-old Alejandro Castro were shot and killed. Soto was driving his fiancée's 1987 Jeep Cherokee wagon and Castro was riding in the front passenger seat when Soto pulled over to the curb to talk to his nieces, thirteen-year-old Angelimar Vargas and her twelve-year-old sister, Marangelie. As the girls talked to their uncle through the front and rear passenger windows, a black, 1995 Monte Carlo with tinted windows approached from the opposite direction and stopped alongside of the Jeep so that the drivers' windows were next to each other. The driver of the Monte Carlo pointed a silver pistol and fired repeatedly into the jeep. Four bullets struck Soto, one above his left eye, one in his nose, one in his left shoulder, and the last in his right forearm. Bullets struck Castro in his forehead and right, lower thigh. Both men died from the bullet wounds.
Although Soto's nieces saw a driver and passenger in the Monte Carlo, neither could describe the passenger. Angelimar described the driver as Spanish, with lighter skin tone than her own, braided hair with his "baby hair . . . laid down, " and a goatee. The driver also had a tattoo on the "right-hand side . . . of [his] arm." Angelimar testified on cross-examination that she did not remember the exact color of the shooter's car and she did not know what the shooter looked like.
Marangelie thought the car looked like a black Lexus with tinted rear windows. She could not describe either the driver or the passenger.
When the shootings occurred, Camden City Police Officers Louis Acetti and David Barrientos were parked in a marked police "paddy wagon" at the corner of Sixth and Erie. Hearing shots, Officer Barrientos looked toward Sixth and York Streets and saw a black vehicle with someone's hand protruding from one of the car's windows. The car accelerated, came toward the police wagon at a high rate of speed, and turned on Erie directly in front of the officers, who gave chase. Barrientos "called a pursuit out." When Officer Barrientos saw his lieutenant, Frank Cook, in another police vehicle that was pursuing the fleeing car, Barrientos radioed that he was returning to the scene and that Lieutenant Cook should continue the pursuit. Officer Barrientos could not determine how many people were in the fleeing vehicle, and could not describe anyone.
As Lieutenant Cook pursued the fleeing car, he broadcast that the driver had a "quarter-length afro, a quarter of the hair a little high cut, " with dark or medium skin, but he was uncertain about the skin color because the car's windows were tinted. Lieutenant Cook also said the driver wore "a light or cream-colored shirt." At trial, however, he testified that he could see only the passenger and that the description he provided was a description of the passenger, not the driver. The description Lieutenant Cook gave while pursuing the fleeing car was consistent with that given by another officer, Bianca Rivera, who described the driver as a male with a medium complexion wearing a white shirt and a baseball cap.
Another Camden City Police Officer, Curtis Davis, spotted the car after receiving radio transmissions about the pursuit. Davis joined the pursuit and followed the car for a short distance, lost sight of it for approximately fifteen seconds, then saw that it had been abandoned in the middle of Magnolia Street near an alleyway. After looking into the car, Davis looked down the alleyway and saw a man wearing a red and white jersey running away. The man removed the jersey and threw it into someone's yard. He eluded the police. The police learned that the car, a Monte Carlo, was registered to Danyel Morton.
No physical evidence recovered from the car or the crime scene directly linked defendant to the crime. The discarded jersey contained no blood. DNA tests of swabs from the "underarms area and the inside of the neck area" of the jersey did not establish the DNA as defendant's, but defendant could not be excluded as a partial source of a stain on the jersey. A ballistics expert testified that the bullets that killed Soto and Castro were likely fired from one firearm, which could have been a nine millimeter Luger caliber high-point semi-automatic pistol.
Investigators learned that earlier in the day, at 2:55 p.m., Collingswood Police Officer Michael Pope had stopped a man driving the Monte Carlo that was later used in the shootings. According to Officer Pope, the driver was a light-skinned black male, approximately five feet, five inches tall, wearing earrings in both ears and a football jersey with the name D. Thomas and the number fifty-eight. The driver also had a small goatee. Unlicensed, the driver identified himself as Malik Cox. Officer Pope contacted Morton, satisfied himself that Malik Cox was permitted to drive Morton's car, then issued two traffic summonses. At trial, Officer Pope identified defendant as the person to whom he issued the summonses.
Morton testified at trial that defendant was the father of her child. The 1995 Black Monte Carlo used during the shootings was registered to her. Defendant had purchased the car and paid for insurance, but registered it in Morton's name because he had no driver's license. On the day Officer Pope stopped defendant in Collingswood, Morton told the officer that defendant was Malik Cox because that was Morton's standard story if defendant were stopped while driving the car. Morton also confirmed that defendant had a red sports jersey in May 2004.
After defendant was stopped by Officer Pope in Collingswood, he went to the Bridgestone Firestone in Mount Ephraim where a worker refunded some of the money defendant had paid for repairs to the car. According to the Firestone worker, defendant was wearing jeans and a "sports throw back jersey."
The police initially suspected that defendant's brother, Lamar Harrity, might have been involved in the shootings. Two days after Soto and Castro were shot, Camden County Prosecutor's Senior Investigator Kevin Kellejan questioned Lamar Harrity's friend, Stephon Cushion, who said Lamar was with him when Soto and Castro were shot.
Cushion testified at trial that Lamar Harrity was a close friend, like a cousin. On the night of the shootings, Cushion let Lamar Harrity use the Intrepid that Cushion regularly drove. Cushion did not need the car because he intended to watch one of his daughters perform in a school play. During the play, one of Cushion's other daughters started to cry, so he called Lamar Harrity who returned to the school in the Intrepid. According to Cushion, Lamar Harrity returned to the school around seven or eight o'clock and they hung out until the play ended, around nine o'clock. Cushion then gave Lamar Harrity twenty dollars to catch a cab home.
Two months after the shootings, on August 21, 2004, defendant's unindicted co-conspirator and accomplice, Anthony Harris, confessed to being the passenger in the car when defendant shot Soto and Castro. Harris, who had a lengthy criminal history, was arrested on August 21 for selling drugs. He told the police he had information about the Soto and Castro homicides. According to his trial testimony, several days before the shootings he met Soto, who claimed to have several AK-47s for sale. Harris telephoned defendant, who later appeared and drove off with Soto. When defendant returned, he was bleeding from the face. Soto had robbed him.
On the night of the homicides, Harris spotted Soto in a black car and was able to speak with him. Although Harris did not testify clearly about where defendant was when Harris spoke to Soto, after the conversation Harris told defendant that Soto was in the car. Defendant had an instant reaction and the two drove to the Washington Apartments where defendant got a nine millimeter Luger pistol. Harris and defendant drove to the "Dope Streets" in North Camden to look for Soto. When they turned onto Sixth Street, Harris noticed the Jeep that Soto was driving. Even though a police paddy wagon was parked ten cars in back of the Jeep, they pulled along the Jeep and defendant started shooting.
Shortly after the shooting, Harris grabbed the gun and jumped from the car. He watched as the paddy wagon drove by, and then left the area. Two days later, he met defendant at a motel. Defendant and a woman named Ashley were going to say that on the night of the homicide, they fought and defendant got out of the car. That was supposed to be their alibi. Defendant also told Harris that if something were to go wrong, defendant would report the car stolen.
Harris denied that defendant's brother, Lamar, had any involvement with the shooting. Although Harris told police that he was wearing a green Eagles jersey and defendant was wearing a red D. Smith jersey when defendant shot Soto and Castro, at trial he claimed defendant left his jersey in the back seat of the car.
In exchange for Harris cooperating with authorities and agreeing to testify truthfully against defendant, the State agreed to permit him to plead guilty to two counts of aggravated manslaughter, for which he received a fifteen-year aggregate sentence with an eight-five percent period of parole ineligibility under the No Early Release Act, (NERA) N.J.S.A. 2C:43-7.2. Harris also received a custodial term for drug charges, but that term was imposed concurrently to his sentence on the manslaughter charges.
During cross-examination, Harris admitted telling a defense investigator on September 29, 2008, that everything he told the police in August 2004 was false. Then on April 13, 2010, in preparation for trial, Harris spoke to the prosecuting attorney and one of her investigators, Kellejan, and told them everything he told the defense investigator was a lie. Harris told the prosecutor and Investigator Kellejan that in exchange for testifying truthfully at the trial, he "wanted reconsideration of [his] sentence." According to a statement provided by the State to defense counsel, when the prosecutor told Harris she was not in a position to reconsider his sentence he said: "If I can't get this . . . upfront agreement done, I will mess this trial up."
Harris denied making that statement. He claimed to have told the prosecutor,
I feel as though for everything that's falling on me . . . and what I [have] been through, . . . I feel as though this is too much time and if you don't put forth your best effort to see if this can't get rectified, I don't feel as though I should come to trial. For what? Because I'm already doing the time.
Defense counsel later confronted Harris with part of the written plea agreement, which stated:
Anthony Harris agrees, as consideration for the State's agreement to permit Anthony Harris' sentencing to proceed as would normally be scheduled rather than have said sentencing held in abeyance until completion of any and all related criminal proceedings in which his cooperation and/or testimony are required, that the State may move before the [c]ourt to annul the plea agreement and the sentence within [thirty] days of the completion of any and all criminal matters in which his cooperation and/or testimony are required should the State determine that Anthony Harris has violated a term of this agreement.
The State also presented another convicted felon, Anthony Flores, as a witness. In 2004, Flores had known defendant for approximately two years, although he knew him by the name "Malik." Flores had a twin brother who was defendant's friend. One evening in May 2004, after defendant telephoned Flores's brother, Flores and his brother met defendant at the Washington Park Apartments. Talking fast and nervous, defendant said that he had seen the guys who had robbed and pistol-whipped him. After spotting them, defendant left, returned with a gun, and then "went up to the car [the victims were sitting in] and . . . just started shooting at them." Defendant told Flores that in addition to the two guys that robbed him, there was another man and girl in the car. Defendant needed some money so that he could lay low and stay in motels. Flores had the sense that the shootings had taken place within the past hour.
During cross-examination, Flores admitted that he first agreed to cooperate with the authorities in July 2009, after he was charged with being the kingpin of a narcotics distribution network as well as for other offenses for which he faced a life sentence. In exchange for testifying truthfully against defendant, Flores was sentenced to serve fourteen years with seven years of parole ineligibility.
Defendant called one witness at trial, Investigator Kellejan. Investigator Kellejan identified a picture of Lamar Harrity and pointed out the tattoos on his arms. The investigator testified that following the homicides, he interviewed Stephon Cushion. On April 13, 2010, shortly before the trial began, Investigator Kellejan interviewed Anthony Harris. When Harris said he would testify consistently with the statement he had given to police in exchange for reconsideration of his sentence, Investigator Kellejan "assured him that no promises, guarantees or agreements could be made." When Harris responded by threatening to "mess up" the trial, Investigator Kellejan "inform[ed] [him] that if he didn't testify truthfully according to the statement that he gave the prosecutor's office that he would be subject to perjury[.]" The investigator also informed Harris "that if he did not testify according to that statement[, ] . . . his original plea agreement would be rescinded[.]"
On cross-examination, Investigator Kellejan testified that following the homicide he interviewed Lamar Harrity, and based on information Harrity gave him, he went to see Stephon Cushion to "either confirm or refute what Lamar Harrity had relayed to [him]." The investigator confirmed it.
On September 26, 2007, a Camden County Grand Jury charged defendant with two counts of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (counts one and two); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a(1) and (2) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third-degree unlawful possession of a weapon, N.J.S.A. 39:5(b) (count five).
The State notified defendant that Anthony Harris was the unnamed co-conspirator referenced in the indictment. Following the disposition of pre-trial motions, defendant was tried and the jury found him guilty of two counts of aggravated manslaughter (lesser included offenses to the charges in counts one and two), and all remaining charges in the indictment. The court denied defendant's motion for a new trial.
At sentencing, the court granted the State's motion for an extended prison term, merged counts three and four, and sentenced defendant to a thirty-year custodial term on count two subject to NERA; a consecutive term of life in prison on count one; and to a concurrent custodial term of five years with two and one-half years of parole eligibility on count five. The court also imposed appropriate penalties and fees. This appeal followed.
Defendant raises the following points for our consideration:
ADMISSION OF TESTIMONY THAT DEFENDANT WAS ROBBED DURING A GUN TRANSACTION WAS IMPROPER OTHER CRIME EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 404(b).
THE TESTIMONY OF NEW JERSEY STATE POLICE DNA ANALYST, SHARON FRECK TOOTELL REGARDING THE WORK PERFORMED BY ANOTHER FORENSIC SCIENTIST VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT OF CONFRONTATION. (Not raised below).
THE TESTIMONY OF DESIREE KING WAS IRRELEVANT AND GROSSLY PREJUDICIAL AND SHOULD HAVE BEEN STRICKEN FROM THE RECORD. (Not raised below).
IT WAS ERROR FOR THE COURT TO CHARGE THE LESSER INCLUDED OFFENSE OF AGGRAVATED MANSLAUGHTER WITHOUT A RATIONAL BASIS TO SUPPORT IT.
THE STATE'S THREAT TO CHARGE A DEFENSE WITNESS WITH PERJURY IF HE DID NOT RENUNCIATE HIS STATEMENT RECANTING THE STATEMENT HE GAVE TO POLICE DEPRIVED THE DEFENDANT OF HIS RIGHT TO DUE PROCESS AND COMPULSORY PROCESS. (Not raised below).
TESTIMONY ELICITED FROM INVESTIGATOR KELLEJAN BY THE STATE DENIED DEFENDANT HIS RIGHT OR CONFRONTATION OF THE WITNESSES' [TESTIMONY] AGAINST HIM. (Not raised below).
IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S REQUEST FOR A "FALSE IN ONE, FALSE IN ALL" CHARGE TO THE JURY.
THE FAILURE OF THE STATE TO MAKE TIMELY DISCLOSURE OF THE STATEMENT OF ANTHONY FLORES VIOLATED THE RULES OF DISCOVERY AND DEFENDANT'S RIGHT TO A FAIR TRIAL.
THE DENIAL OF DEFENDANT'S MOTION FOR NEW TRIAL WAS ERRONEOUS.
THE DEFENDANT'S SENTENCE OF LIFE WITH 89 YEARS 3 MONTHS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below).
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below).
In addition, defendant raises the following point in his pro se supplemental brief:
THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
Defendant makes several of his arguments for the first time, having omitted to raise them during the trial proceedings. We review those arguments under the plain error standard of review. R. 2:10-2. Under that standard, we will not reverse a jury's verdict unless the error was "of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid.; accord, State v. Stas, 212 N.J. 37, 49 (2012). The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. McGuire, 419 N.J.Super. 88, 106-07 (App. Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011).
We must evaluate some of defendant's other arguments under the similar harmless error standard. That standard "requires that there be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. Lazo, 209 N.J. 9, 26 (2012) (alterations in original) (internal quotation marks and citations omitted).
With those principles in mind, we turn to defendant's arguments in Points V and VIII concerning events that occurred before two of the State's witnesses, Harris and Flores, testified at trial. Defendant argues in Point V that the State's warning to Harris — that he would be charged with perjury if he did not testify as he agreed to do when he accepted the State's plea offer — denied defendant due process and compulsory process; and in Point VIII that the State's untimely disclosure of Flores's statement to police violated the rules of discovery as well as defendant's right to a fair trial. We are not persuaded by these arguments.
Defendant contends for the first time on appeal that the State's warning to Harris about perjury substantially interfered with Harris's decision to testify and thereby violated defendant's constitutional rights. The State counters that defendant waived this argument by not presenting it to the trial court and, in any event, the argument is meritless.
The Federal and New Jersey Constitutions guarantee criminal defendants the right to due process and the right to compulsory process so that they are able to present defenses and compel the testimony of witnesses. U.S Const. amends. V, VI, XIV § 1; N.J. Const. art I, ¶¶ 1, 10. When the government substantially interferes with a defense witness's "free and unhampered choice to testify, " it violates those rights. State v. Feaster, 184 N.J. 235, 250 (2005) (quoting United States v. Hammond, 598 F.2d 1008, 1012, modified on reh'g on other grounds, 605 F.2d 862 (5th Cir. 1979)). It is improper for a prosecutor to threaten a prospective defense witness with prosecution for perjury before the witness actually testifies at trial in contradiction to a previous sworn statement, even when the warnings are conveyed in good faith. Id. at 252-58. Pre-trial interference by a prosecutor with a defense witness's recantation "does not advance the truth-seeking function of a trial[.]" Id. at 261. The prosecutor may expose the falsity of such testimony on cross-examination. Id.
The obvious flaw in defendant's argument is that Harris was not a defense witness and he was not dissuaded from testifying. Although defendant characterizes Harris as a defense witness, defendant cites to nothing in the record that suggests he intended to call Harris during his case. To the contrary, the record suggests that the State had intended to call Harris as a witness at least since Harris made his plea bargain.
Although defendant cites several cases in which courts held that interference with a defense witness's choice to testify for the defense violated the defendant's right to due process and to compulsory process, no case cited by defendant involved a witness the prosecution, rather than the defense, intended to present at trial. And in each case cited by defendant, the witness ultimately refused to testify on the defendant's behalf.
In Webb v. Texas, after the defendant called his only witness, the "[t]trial judge gratuitously singled out this one witness for a lengthy admonition on the dangers of perjury . . . and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence[.]" Supra, 409 U.S. 95, 97, 93 S.Ct. 351, 353, 34 L.Ed.2d 330, 333 (1972). In United States v. Morrison, a co-defendant "planned his defense around the testimony of [his] girl friend, who allegedly was prepared to swear that it was she and not [he] who had been involved in the conspiracy[.]" 535 F.2d 223, 225 (3d Cir. 1976). After the United States rested its case, the Assistant United States Attorney "sent messages to [the witness] through defense counsel warning that she was liable to be prosecuted on drug charges; that if she testified, that testimony would be used as evidence against her and, further, that . . . it would be possible to bring federal perjury charges against her." Ibid.
Similarly, the cases cited by defendant and decided by our Supreme Court, involved witnesses who refused to testify for the defense after intercession by either the prosecutor or the court. In Feaster, a prosecutor's veiled threat to a witness who had testified against that defendant at trial, but intended to recant his testimony at the hearing on the defendant's petition for post-conviction relief, "denied defendant a witness who might have supported his claim that he was wrongly convicted and sentenced to death." Supra, 184 N.J. at 240. And in State v. Jamison, a witness "who had been designated by the defense as a potential defense witness . . . [i]ntended to take the witness stand and testify that he, not the defendant, had stabbed [the victim]." 64 N.J. 363, 368 (1974). The witness changed his mind after the prosecutor and defense counsel informed him of his right against self-incrimination and the trial judge appointed counsel to represent him. Id. at 368-369.
Here, the State, not defendant, intended to call Harris as a witness. More significantly, the State's warnings to Harris resulted in Harris testifying, not refusing to testify; and defendant was afforded the opportunity to cross-examine Harris about his motive for implicating defendant, his statement to the defense investigator recanting his statement to the police, and his most recent attempt to renegotiate his plea. In short, "the truth-seeking function of a trial" was served. Feaster, supra, 184 N.J. at 261. There was no error here, let alone plain error.
Defendant argues in Point VIII that the court should have barred Flores from testifying because the State belatedly produced his statement to police. Flores gave the statement in July 2009 but the State did not provide it to defendant until February 2010. The State claimed that it did not produce the statement sooner because Flores was cooperating in other cases that would have been compromised if the State produced the statement when Flores made it. Although defendant asserts that he was "grossly prejudiced" by the delay, and that the only remedy that would have assured him a fair trial was "precluding Flores from testifying, " he offers no concrete facts to support his conclusory statements.
Before the trial started, defendant filed a motion to dismiss the indictment based on, among other things, the State's discovery violation. The court denied the motion, noting that the State had provided the statement to defendant approximately two months before the trial was scheduled to begin, and finding no reason to dismiss the indictment or to exclude the evidence. Nonetheless, the court said it "would entertain a request from the defendant for additional time." Significantly, defendant did not request additional time. He does not explain now what he would have done then if he had received the statement sooner, or how the belated disclosure of the statement prevented him from properly preparing for trial.
The State has both an obligation to provide a defendant with discovery within fourteen days after the return or unsealing of the indictment and a continuing duty to "promptly" disclose any additional material it has subsequently obtained. R. 3:13-3(b) and (f). Upon motion and a showing of "good cause, " the court may deny, restrict, or defer disclosure or inspection for the "protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; confidential information recognized by law, including protection of confidential relationships and privileges; or any other relevant considerations." R. 3:13-3(e)(1). Here, the State did not seek a protective order.
The State disregarded the Supreme Court's rule-making authority when it withheld discovery without filing a motion and obtaining a court order. For that transgression, the court was authorized "to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, . . . prohibit the [State] from introducing in evidence the material not disclosed, or . . . enter such other order as it deem[ed] appropriate." R. 3:13-3(f). "The choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court." State v. Marshall, 123 N.J. 1, 134 (1991). Although here defendant could offer to the trial court nothing other than vague generalities about why he had been prejudiced, the court nevertheless said it would entertain a request for additional time. The court acted well within its discretion when it resolved the State's discovery violation in that manner.
We next address defendant's contentions in Points I, II, III, and VII that instances of improper testimony during the trial require reversal of his conviction. In his first point, though conceding the trial court correctly admitted evidence that his motive for killing Soto was revenge for the robbery, defendant argues that the trial court erroneously admitted unduly prejudicial testimony that the robbery occurred while defendant was attempting to purchase an AK-47.
Before the trial began, the State moved to admit evidence that the victim's robbery of defendant involved drugs and a gun transaction. Defendant initially argued the State could not prove by clear and convincing evidence that the robbery occurred and she asked for an offer of proof. After the State made its proffer, defendant objected "to any information coming in that . . . my client and these other people were involved in drug activity[.]" She argued that mention of the drug activity was irrelevant and highly prejudicial, because the State intended to prove that defendant "allegedly shot these two individuals because the day previously they attempted to rob him for a gun, " but there was no evidence that defendant was trying to sell anybody drugs or that he killed them over drugs.
After applying the standards set forth in N.J.R.E. 404(b) and explained in State v. Cofield, 127 N.J. 328, 338 (1992), the court granted the State's motion in part, and denied it in part. The court granted the State's motion to admit evidence that Soto robbed defendant during an attempted gun transaction, and defendant's statements to Ruiz and Flores that his motivation was to "defend the honor of the drug set"; but excluded evidence of defendant's participation in drug dealing and evidence that he knew the State's witnesses through their mutual drug dealings.
The court determined that defendant's attempt to purchase a gun from Soto, and Soto's subsequent robbery of defendant, "undoubtedly speak to the defendant's motive for committing the murders." The court further determined that those events were "a mere three days apart, " and were established by competent testimony. Lastly, the court found that while any evidence that established a defendant's guilt or misconduct was prejudicial, the prejudice of the subject evidence did not outweigh the probative value of the evidence that related "directly to the charged conduct." The court observed that, "while an allegation that the defendant attempted to purchase an assault rifle is unsavory and illegal, it is comparatively [tame], considering that the State is accusing the defendant of violently murdering two men."
Although N.J.R.E. 404(b) prohibits the State from introducing evidence of other crimes to prove a defendant acted in conformity with a disposition to engage in criminal behavior, the Rule permits the use of other crimes evidence for other purposes, such as "proof of motive[, ] . . . when such matters are relevant to a material issue in dispute." When the State seeks to admit other crimes evidence, the trial court must determine whether the evidence is relevant to a material issue; similar in kind and reasonably close in time to the offense charged; clear and convincing; and has probative value that is not outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338.
We review a trial court's decision for an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011). "When specifically reviewing the sensitive admissibility rulings made pursuant to the weighing process demanded by Rule 404(b), . . . '[o]nly where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed.'" Id. at 157-58 (quoting State v. Barden, 195 N.J. 375, 391 (2008)) (alteration in original).
The trial court here made no clear error of judgment. The circumstances surrounding Soto's robbery of defendant occurred within a day or two of the shootings and were, indisputably, relevant to defendant's motive for shooting Soto and Castro. The State established those circumstances through Harris, who participated in some of them and was told about the rest by defendant himself.
Defendant disputes the trial court's determination that the probative value of the AK-47 evidence was not outweighed by its apparent prejudice. The trial court found that the impact of the AK-47 evidence was slight when compared to the magnitude of the shootings. Moreover, the evidence established how Soto set defendant up for the robbery, why defendant accompanied Soto, and why defendant would not report the robbery to the authorities; factors that strengthened the proposition that the robbery motivated defendant to shoot and kill Soto rather than take some other action, for example, reporting him to the police, which most robbery victims could be expected to do. The court's decision was precisely the type of sensitive admissibility ruling under Rule 404(b) that should not be disturbed absent a clear error of judgment. We find no reason in the record to disturb the trial court's ruling.
Defendant argues in his second point that his right to confront witnesses was violated when the State presented the DNA test results from the swabs taken from the abandoned jersey. The State presented the evidence through Sharon Freck-Tootell, the supervisor who "peered or technically reviewed" the testing conducted by Jennifer Thayer, another scientist in the New Jersey State Police laboratory. Thayer was on maternity leave, a fact the State made known to defense counsel and to the court on the first day of trial when the prosecutor placed on the record a summary of her discussion with defense counsel. The prosecutor told the court that Thayer's supervisor, Freck-Tootell, was "going to testify regarding the DNA results." Defense counsel made no objection then, and made no objection when Freck-Tootell testified at trial.
A defendant's Sixth Amendment right to confront adverse witnesses, if not waived, is violated when the witness's hearsay statements are admitted and either the witness does not appear at trial, or the witness is unavailable for trial and has not been previously subject to cross-examination by the defendant. Melendez-Diaz v. Mass., 557 U.S. 305, 308-10, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314, 320-21 (2009); Crawford v. Wash., 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177, 203 (2004). Such a violation occurs when a certified forensic laboratory report prepared as evidence in a criminal proceeding is admitted into evidence to establish the truth of its content. Melendez-Diaz, supra, 557 U.S. at 310-11, 129 S.Ct. at 2532, 174 L.Ed.2d at 322; State v. Simbara, 175 N.J. 37, 40 (2002). The right to confrontation is also violated when the State proves the report's content through the testimony of a surrogate scientist who did not sign the certification or perform or observe the test. See Bullcoming v. New Mexico, U.S., 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011). But see Williams v. Illinois, __U.S.__, 132 S.Ct. 2221, 2243-44, 183 L.Ed.2d 89, 115-16 (2012) (plurality opinion) (affirming the admissibility at a bench trial of an expert's testimony that recounted a report of DNA testing and results prepared by a non-testifying witness).
"The right to confrontation may, of course, be waived, including by failure to object to the offending evidence[.]" Melendez-Diaz, supra, 557 U.S. at 313-14 n.3, 129 S.Ct. at 2534 n.3, 174 L.Ed.2d at 323 n.3; see also Simbara, supra, 175 N.J. at 49 (2002) ("adher[ing] to . . . belief that in the majority of cases a defendant will not challenge the certificate 'either because the focus of the defense is otherwise or because he or she may not wish to suffer the piling-on effect of a live witness when there is no true contest over the nature of the tested substance'") (quoting State v. Miller, 170 N.J. 417, 431 (2002)). Our Supreme Court has "insisted that, in opposing the admission of evidence, a litigant must 'make known his position to the end that the trial court may consciously rule upon it.'" State v. Robinson, 200 N.J. 1, 19 (2009) (quoting State v. Abbott, 36 N.J. 63, 76 (1961)). One reason for the Court's insistence on timely objections is
the canny recognition that if late-blooming issues were allowed to be raised for the first time on appeal, this would be an incentive for game-playing by counsel, for acquiescing through silence when risky rulings are made, and, when they can no longer be corrected at the trial level, unveiling them as new weapons on appeal.
[Ibid. (quoting Frank M. Coffin, On Appeal: Courts, Lawyering, and Judging 84-85 (W.W. Norton & Co. 1994)).]
Here, these principles are compelling. Although Thayer was on maternity leave, nothing in the record suggests that she was incapable of coming to court and testifying. The State informed defendant of its intention to present the DNA evidence through Freck-Tootell in ample time for defendant to make an appropriate objection. Now, when the State can no longer address the issue, defendant raises it for the first time, without even making a bona fide suggestion that Thayer's DNA test results are invalid. Considering those circumstances, we have no difficulty concluding defendant waived his right to confront Thayer.
Defendant argues in Point III that the testimony of Soto's fiancée, Desiree King, was irrelevant and "grossly prejudicial." The argument merits little discussion. King testified that she was eight months pregnant when Soto was shot and killed in her jeep. She also testified that on May 27, 2004, after receiving a phone call that Soto had been in a car accident, she went to the hospital where she "was walked down to the morgue where [she] identified [Soto's] body." While testifying in court, she identified a photograph of Soto. Defendant objected to none of the testimony. Significantly, King's short testimony, which was transcribed on only two pages of the lengthy trial transcript, followed that of the medical examiner, who described the victims' wounds in graphic detail, aided by photographic evidence. King's pregnancy, ownership of the Jeep, and identification of Soto's body in the morgue, could hardly "have been clearly capable of producing an unjust result[.]" R. 2:10-2.
Defendant raises in Point VI, as his final contention concerning testimonial error, the prosecutor's cross-examination of Investigator Kellejan, the only witness the defense presented at trial. The defense theory of the case was that defendant's brother, Lamar Harrity, and Harris had committed the homicides. Defendant's direct examination of Kellejan included the following:
[DEFENSE COUNSEL:] As a result of interviewing Lamar Harrity, did you decide to interview someone by the name of Stephon or Stephon Cushion?
A. We did.
Q. After that interview, based [sic] that interview, you decided to have another interview with Lamar, didn't you?
A. We did not have another interview with him.
During cross-examination, the prosecutor pursued the topic:
[PROSECUTOR:] When you interviewed Lamar Harrity, he gave you certain information, isn't that right?
A. He did.
Q. So to follow up on the information from Lamar Harrity, that's when you went to see Stephon Cushion.
A. Also correct.
Q. Now, based upon what Stephon Cushion told you, were you able to confirm or refute what Lamar told you?
A. We spoke to another source, correct.
Q. And were you able to confirm what Lamar told you?
During summation, the prosecutor argued to the jury:
You heard from Sergeant Kellejan how he actually got to talk to Stephon Cushion, because he talked to Lamar Harrity first. Based upon what Lamar Harrity said, that's when he went to Stephon Cushion to be able to confirm what Lamar said, and you heard me ask Sergeant Kellejan were you able to confirm it? Yes, I was. That, ladies and gentleman, is an alibi. That is an alibi for Lamar Harrity.
Defendant objected to neither the cross-examination of Kallejan nor the prosecutor's closing remarks. Now, defendant argues for the first time that the "testimony and remarks by the [p]rosecutor . . . presented the statements of Lamar Harrity to the police without his testifying in court . . . and being subject to cross-examination." Defendant further argues that Kallejan's testimony during cross-examination was inadmissible hearsay, and that "the State could not present this evidence to destroy the defense without calling Lamar as a witness."
Because defendant did not object to either Kallejan's testimony or the prosecutor's closing remarks, we analyze his argument under the plain error standard. We find no plain error.
The prosecutor's cross-examination of Investigator Kallejan, as well as her closing remarks about his testimony establishing Lamar Harrity's alibi, were improper. Forty years ago, our Supreme Court explained that when a police officer "repeat[s] what some other person told him concerning a crime by the accused the testimony violates the hearsay rule . . . [and] the accused's Sixth Amendment right to be confronted by witnesses against him." State v. Bankston, 63 N.J. 263, 268-69 (1973). The hearsay rule and an accused's Sixth Amendment right to confrontation are violated not only when the police officer specifically repeats an out–of-court statement made by a person who does not testify at trial, but also "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt . . . ." Id. at 271. Those principles apply with equal force to hearsay testimony that undermines a defendant's defense.
Nevertheless after considering the strengths and weaknesses of both the State's proofs and defendant's attempt to shift blame to his brother, we conclude the error was not clearly capable of producing an unjust result. To begin with, defendant himself established that Investigator Kellejan spoke to Lamar Harrity before interviewing Lamar's alibi witness, Stephon Cushion. Additionally, the State had produced Cushion, who testified he had given his girlfriend's car to Lamar on the evening of the shootings, and that Lamar later returned and stayed with Cushion until after nine o'clock. Thus, the jury could have inferred from Investigator Kellejan first interviewing Lamar Harrity and thereafter Cushion — facts elicited by defendant — and from Cushion's testimony, that the investigator interviewed Cushion to confirm Lamar Harrity's alibi. More significantly, that evidence provided a good-faith basis for the prosecutor to argue to the jury that Lamar Harrity had an alibi. In other words, the prosecutor had a basis for her argument that was independent of the implied hearsay derived solely from her cross-examination of Investigator Kellejan.
Moreover, the prosecution's case against defendant was compelling. He owned the car from which the killer or killers shot Soto and Castro, even though he registered it in another's name because he was an unlicensed driver. He had driven the car on the afternoon of the shootings, and there was little or no credible evidence that his brother was driving the car at any time that day. The State presented strong circumstantial evidence that the jersey discarded by one of the car's occupants belonged to defendant. Harris testified he was with defendant when defendant shot Soto and Castro, and there was no plausible explanation as to why Harris would implicate defendant, rather than defendant's brother, when Harris decided to make a deal with the authorities. Additionally, Flores testified that defendant admitted shooting Soto and Castro.
Considering that Lamar Harrity's "alibi" had been properly presented to the jury through Cushion, and further considering the strength of the State's case, the prosecutor's error was not "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" McGuire, supra, 419 N.J.Super. at 106-07 (internal quotation marks and citation omitted) (alteration in original).
In Points IV and VI, and in his pro se supplemental brief, defendant challenges the court's jury instruction on aggravated manslaughter, the court's refusal to give a jury instruction on "false in one, false in all, " and the court's omission of an instruction on the limited use of the AK-47 evidence. We find no merit in those challenges.
First, defendant did not object to the court instructing the jury on manslaughter as a lesser included offense to murder. When the court told counsel during the charge conference that it intended to instruct the jury on murder, passion/provocation, aggravated, and reckless manslaughter; and proposed to read the charge on each crime once but explain that the instructions applied to each of the first two counts; defense counsel responded, "[t]hat's fine." The court next asked if there were any objections to those charges and defense counsel responded: "No objections." Because defendant did not object, "we review the charge for plain error and reverse only if such an error was 'clearly capable of producing an unjust result.'" State v. Miller, 205 N.J. 109, 126 (2011) (quoting R. 2:10-2).
Aggravated manslaughter is a lesser-included offense to murder. State v. Galicia, 210 N.J. 364, 400 (2012). Trial courts have "an independent obligation to charge lesser-included offenses when they are presented by the evidence and there is a 'rational basis' for determining that the jury could acquit on the greater offense and convict on the lesser." State v. Ramsey, 415 N.J.Super. 257, 263 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011); see also N.J.S.A. 2C:1-8e.
For the prosecution to prevail in a purposeful murder case, it must show that the defendant intended to cause death and that his or her conduct caused the death of another. N.J.S.A. 2C:11-3a(1). Similarly, for a conviction of knowing murder, the prosecution must prove that the defendant knew that his or her conduct was practically certain to cause death and such conduct caused the death of another. N.J.S.A. 2C:11-3a(2). A lower degree of culpability is required to prove aggravated manslaughter, for which the prosecution must show that the defendant was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life. N.J.S.A. 2C:11-4(a).
[State v. Cruze, 163 N.J. 403, 417 (2000).]
Here, though there was evidence from which a jury could have inferred that defendant either purposely or knowingly killed Soto, and perhaps Castro, the jury could have just as readily concluded that repeatedly firing a handgun through the window of a parked jeep with two occupants and two pedestrians talking through the passenger windows, that defendant consciously disregarded the probability that death would result and did so while manifesting extreme indifference to human life.
Defendant argues that the facts in this case are "on all fours" with Ramsey, where the court explained, "it cannot reasonably be said that shooting a victim in the abdomen upon discharge of a firearm four times, in close range . . . involved mere reckless conduct or a conscious disregard of a substantial risk of death." Supra, 415 N.J.Super. at 271. We disagree. Here, defendant did not single out a pedestrian to shoot at close range. Rather, he repeatedly fired shots in a manner that could have struck Soto, Castro, or Soto's nieces.
The only description about how defendant fired into the Jeep came from Harris. Harris initially said that Soto had a reputation and that before Soto could shoot defendant, "the window went down, shots fired." Then Harris said that as the passenger looked over to see what was going on, "[s]hots is firing." Defendant and Harris then drove off. Harris was reluctant to be more specific. When pressed by the prosecutor, he said: "[w]e pulled up on the Jeep and let off some shots, . . . just started shooting the gun." When pressed further, he testified: "[a]s [Soto] and the other guy who was shot looked over or as [Soto] looked over [defendant] shot him. Shot him, and the other guy looked. He didn't even take the initiative to duck. He just looked. He got shot."
That evidence clearly warranted a charge of aggravated manslaughter as to Castro. Although there was substantial evidence that defendant intentionally or purposefully killed Soto, the evidence also established the elements of aggravated manslaughter, although much depended on the jury's assessment of Harris' imprecise testimony.
Defendant did not object to the court charging aggravated manslaughter on the first two counts of the indictment, one concerning the death of Soto, the other concerning the death of Castro. To the contrary, when the court told the parties that it intended to define the elements of murder and manslaughter only one time but tell the jury they applied to the first two accounts of the indictment, defense counsel said it was fine with her. As we said in Ramsey:
We have real concerns about a defendant's ability to seek reversal based on the failure to charge the jury on a lesser-included offense after objecting to such a charge or agreeing it should not be given. A defendant has little risk if he could gamble "all or nothing" on the outcome and obtain a reversal upon conviction if the lesser offense was clearly indicated by the evidence.
[Supra, 415 N.J.Super. at 264.]
We also have real concerns about a defendant's ability to seek reversal based upon a trial court charging on a lesser-included offense, after assenting to the charge. That is particularly so where the State's evidence of murder is substantial, yet the jury convicts on aggravated manslaughter, and defendant then argues that the aggravated manslaughter charge was unwarranted. In any event, although a close call, the evidence supported the jury's verdict of aggravated manslaughter as a lesser-included offense to murder.
Next, we find no plain error in the point defendant raises in his pro se supplemental brief, namely, that the court erred by not charging the jury on the limited use for which it could consider the evidence that defendant intended to purchase an AK- 47 from Soto. Generally, when a court admits other crimes evidence it must give "a firm and clear jury instruction[.]" State v. Gillispie, 208 N.J. 59, 92 (2011). Here, however, defense counsel appeared to make a tactical decision not to object to the evidence.
During the pre-trial hearing, she did not specifically object to reference to AK-47, but rather objected to the evidence concerning drug activity. Through her cross-examination of Harris, she established that he, not defendant, had been interested in buying an AK-47 from Soto. She emphasized that point in her summation and also argued that Harris had made up the story about a robbery. A limiting instruction concerning restricting the use of the AK-47 evidence, or limiting its use depending on whether the jury found Harris credible, may have undermined the defense argument.
Moreover, the jury could not have mistaken the reason the prosecutor introduced the evidence. In her summation, the prosecutor said:
[Defendant is] serving up some revenge. He's serving up retaliation and he's doing it with bullets to the head. The shooter [in] that black Monte Carlo is [defendant]. [Defendant] killed Alejandro Soto and Alejandra Castro because Soto robbed him.
Considering those circumstances and the strength of the State's case, we find no plain error in the court's omission to give the jury a limiting instruction.
Lastly, defendant alleges the court committed reversible error when it refused to give a "false in one, false in all" instruction to the jury. That charge "is not a mandatory rule of evidence, but rather a presumable inference that a jury [or judge sitting without a jury] may or may not draw when convinced that an attempt has been made to mislead them by a witness in some material respect." State v. Fleckenstein, 60 N.J.Super. 399, 408 (App. Div.) (quoting State v. Guida, 118 N.J.L. 289, 297 (Sup. Ct. 1937)), certif. denied, 33 N.J. 109 (1960) (alteration in original). The charge is discretionary. See State v. Ernst, 32 N.J. 567, 583-84 (1960). The trial court in the case before us refused defendant's request to give the charge because the general charge on credibility adequately covered the issue. When instructing the jury on the credibility of witnesses, the court explained that the jury should consider whether "the witness testified with an intent to deceive you." The court also instructed the jury that it could "consider whether a person who has previously failed to comply with society's rules as demonstrated through criminal convictions would be more likely to ignore the oath requiring truthfulness . . . than a person who has never been convicted of a crime." And the court further instructed the jury to carefully scrutinize the testimony of Harris, who was testifying as part of a plea bargain. Considering the charge as a whole, we cannot conclude that the trial court abused its discretion. In any event, even if the court's failure to give the charge was error, it was harmless error. Lazo, supra, 209 N.J. at 26.
Defendant argues in Point X that his sentence was excessive. He claims the court improperly considered the nature and circumstances of the offense as an aggravating factor; ignored the mitigating factors that he acted under a strong provocation and that the victim's conduct induced or facilitated the crime; and improperly imposed consecutive and extended sentences. We disagree.
A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive or unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989). When the sentencing judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). "[A]n appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." O'Donnell, supra, 117 N.J. at 216. When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court], " we may not second-guess the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations and citations omitted).
The court found the existence of aggravating factor one, N.J.S.A. 2C:44-a(1), that the nature and circumstances of the offense were committed in an especially heinous, cruel or depraved manner because defendant "created an extremely dangerous situation for both civilians and law enforcement" when he shot the victims in a parked car and then led police on a high-speed chase that included speeding the wrong way on a heavily-travelled boulevard. It also found aggravating factor three, N.J.S.A. 2C:44-a(3), the risk that the defendant would commit another crime, based on the violent nature of the crime, his criminal history, and the fact that he was on federal supervised release when he committed the killings. The court also found as an aggravating factor the extent of defendant's prior record, N.J.S.A. 2C:44-a(6), which included eight municipal court convictions, one federal conviction, two superior court convictions, one juvenile adjudication and one juvenile diversion. Lastly, the court found aggravating factor nine, N.J.S.A. 2C:44-a(9), the need for deterrence.
After reviewing each of the statutory mitigating factors, N.J.S.A. 2C:44-b(1) through (13), and explaining its reasons for rejecting them, the court sentenced defendant to an aggregate custodial term of life plus thirty years.
Contrary to defendant's argument, the court did not abuse its discretion when it found aggregating factor one, which was supported by the evidence. When defendant repeatedly fired his gun at a parked car, on a public street, he endangered not only the lives of the occupants in the car, but the pedestrians as well. He then endangered numerous other innocent people by leading the police on a high-speed chase through Camden. The nature and circumstances of defendant's endangerment of pedestrians, when he fired his gun and/or his flight from the homicide scene, were not part of the jury's verdict that was based on his killing of Soto and Castro, and his possession of a handgun. We reject defendant's argument that the trial court's consideration of aggravating factor one constituted "double-counting."
Nor did the court abuse its discretion when it rejected defendant's argument that mitigating factors three and five applied. No evidence supported defendant's assertion that he acted under a strong provocation when he committed the homicides. There was substantial evidence to the contrary. And there was no evidence whatsoever that Soto and Castro facilitated their own deaths.
Defendant's argument that consecutive sentences were not warranted because the homicides occurred during a single criminal episode is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that the trial court meticulously and comprehensively reviewed the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), and its decision to impose consecutive sentences is fully supported by the record.
Finally, defendant argues that the court abused its discretion by imposing an extended term while at the same time imposing consecutive sentences. Defendant does not dispute that he was a persistent offender and therefore subject to the persistent offenders statute, N.J.S.A. 2C:44-3a. The court imposed the extended term only after carefully "re-weighing and re-evaluating aggravating and mitigating factors on a qualitative as well as a quantitative basis[.]" Having engaged in that process, the court found that the aggravating factors convincingly and substantially outweighed mitigating factors. The court acted well within its discretion when it imposed the extended term sentence.
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).