September 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CHARLES W. GOULD, a/k/a MISTER A. YOUNG, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-09-2503.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Parrillo and Guadagno.
Tried to a jury, defendant Charles W. Gould was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) (count two); second, third, and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), (2), (4) and (7) (counts three, four, five, and six); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count nine).
Counts three through six and count eight were merged into count one and defendant was sentenced to seventeen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count two, defendant received a concurrent, seventeen-year NERA sentence. On count seven, defendant received a concurrent, eight-year term with a three-year parole disqualifier. On count nine, defendant received a consecutive eight-year term with five years of parole ineligibility. Thus, defendant's aggregate sentence was twenty-five years, with nineteen and one-half to be served without parole.
On appeal, appellant provides the following points for our consideration:
THE PROSECUTOR'S MISUSE OF TESTIMONIAL HEARSAY, FROM NON-TESTIFYING ALLEGED WITNESSES WHO IMPLICATED DEFENDANT DURING THE POLICE INVESTIGATION, VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
In a supplemental pro se brief, defendant provides one additional argument:
THE COURT FAILED TO CONDUCT A WADE HEARING AND TO ACKNOWLEDGE THE VARIOUS DIFFERENT DESCRIPTIONS OF THE PERPETRATOR GIVEN BY SEVERAL DIFFERENT WITNESSES AT TRIAL THUS VIOLATING DEFENDANTS DUE PROCESS RIGHTS.
We have considered these arguments in light of the record and applicable legal standards, and we affirm.
Around 4:00 p.m. on March 30, 2010, Brandon Adams was standing at the corner of Rand and Thorndyke in Camden selling drugs with Kelly Robinson who was acting as a look-out. Alcedes Santori walked past the two men and greeted Adams. Santori continued toward a friend's house nearby. While in the house, Santori noticed Victoria Long outside and went down to smoke a cigarette with her. Long only had one cigarette so she walked toward Adams to see if he had any. Long returned with a cigarette and then walked with Santori back towards Adams.
As Santori and Long approached Adams, they noticed two men. One stayed at the corner while the other, armed with a handgun, approached Adams. The gunman, later identified as defendant, put the gun to Adams's stomach and demanded his money. Adams appeared to recognize the gunman and, at first, thought he was joking. Once he realized the gunman was serious, Adams turned over his money.
Defendant then ordered Adams to take him to where his "stash" of drugs was hidden. Adams directed defendant to an alleyway where he had kept some of his drugs, but explained that there were no drugs there. Defendant became irate and shot Adams five times, causing severe injuries to his arm, stomach and liver. Defendant then left with the other person.
After the shooting, Santori and Long fled back to their friend's house. Adams followed them and asked them to call an ambulance. When the ambulance did not arrive promptly, Long and her brother, Michael Leslie, drove Adams to Cooper University Hospital. Adams underwent several surgeries to repair injuries from gunshot wounds to his abdomen and liver, and two fractured bones in his right arm.
New Jersey State Trooper Arthur Barilotti led the investigation into Adams's shooting. Barilotti conducted a tape-recorded interview of Robinson who provided a description of the gunman. Robinson said he had seen the gunman before.
The following day, Barilotti went back to the hospital to question Adams. While Adams provided a description of the gunman, he would not cooperate further with the investigation. Barilotti learned from Michael Leslie, Long's brother, that the "the word on the street" was that the shooter's nickname was "Mister."
On April 1, 2010, Adams's mother, Jean Adams, contacted the Camden Police Department and informed them that her son told her that a man named "Mister" had shot him, but he did not want her to tell the police because he did not want to be known as a "snitch." After speaking with Ms. Adams, Detective Barilotti returned to the hospital with her. Ms. Adams went into her son's room first, while Barilotti waited outside the room. Barilotti heard Adams yelling at his mother for talking to the police and told her that he could be in danger now. After hearing this, Barilotti entered the hospital room to try and speak with Adams but he became angry and refused to provide any information.
After learning that defendant was known as "Mister, " Barilotti prepared a photo array for the three eyewitnesses to the shooting, Long, Santori and Robinson. Santori picked up defendant's photo, hesitated, but did not identify any of the photos as the shooter. While the police were transporting Santori home, he began to cry and expressed concern for his family's safety. Trooper Michael Legati asked him if he saw the shooter in the photo array and he responded that it was number four, "Mister." The police, however, were not able to obtain a formal statement from Santori.
Long was shown the same photo array and identified defendant, whom she knew as "Mister." She told police that the way "Mister" shot Adams was not right and that it seemed "personal."
Robinson viewed the photo array and also identified defendant as the shooter. He said he was "positive it's him, " and that he was "a hundred percent" positive. Robinson then explained that "Mister" threatened him the night of the shooting and said what happened to Adams could happen to him.
At trial, Long, Santori and Robinson all denied identifying defendant as the shooter in the photo arrays. The State conducted a Gross hearing to determine if the witnesses' prior inconsistent statements identifying defendant could be admitted. The trial court found these pre-trial identifications to be reliable and permitted their admission.
During the trial, Adams was called as a witness for defendant and testified that he was able to see who shot him and Adams was not the shooter. On cross-examination, the State asked Adams whether he told his mother that "Mister" was the person who shot him. When he denied this, the trial court permitted the State to call Ms. Adams as a rebuttal witness. Ms. Adams testified that while Adams was in the hospital he told her that "someone named 'Mister' shot him." She indicated that Adams described "Mister" as a light-skinned male who wore glasses. Defendant told her not to tell anyone about this.
Defendant did not testify on his behalf.
Defendant contends that Trooper Barilotti's testimony at trial as to information received from non-testifying witnesses, violated defendant's due process rights by depriving him of the right to confront these witnesses. Specifically, defendant claims Barilotti's initial "lead" that identified the person who shot Adams by the nickname "Mister" was based solely on the "word on the street" and the information did not come from people who were eyewitnesses to the shooting. We reject this argument.
While Barilotti did receive "word on the street" information from Michael Leslie that someone named "Mister" shot Adams, he also received the same information from the victim's mother who learned directly from her son - both testifying witnesses - that "Mister" had shot him.
Throughout the trial, defendant challenged Barilotti's investigation as being based on speculation and relying only on "the word on the street." In his opening statement, defendant's central theme was that the only connection between "Mister" and the shooting was "the word on the street." During his cross-examination of Barilotti, defendant established that Adams never directly mentioned the name "Mister" to the police and that he refused to cooperate with the investigation:
Q: Detective, isn't [it] true that before the photo array was prepared you had actually only heard the name "Mister" from two people?
A: That's correct.
Q: And neither one of those people were witnesses to the shooting?
A: That's correct.
Q: Isn't it also true that one of these two witnesses was Mr.
A: Yes -- That gave a statement, yes.
Q: When he gave a statement he prefaced it with "The word on the street was"?
Q: So, isn't it also true that the other witness who came up with the name "Mister" was Brandon Adams'[s] mother?
Q: And she didn't even know who "Mister" was?
A: No, she didn't.
During Barilotti's redirect examination, the State elicited additional information to demonstrate that Barilotti's focus on defendant as the shooter was not based solely on "the word on the street:"
Q: [C]ounsel asked you about how "Mister" got into this -- the name "Mister" got into this case. Correct?
A: That's correct.
Q: Did you, in fact, get a lead that "Mister" was the shooter?
Q: Okay. And based on -- Was that from someone who was at the scene
of the shooting.
Q: Was it someone who was in the area?
Q: Okay. Was it from someone who had -- Didn't counsel ask you if it was from Michael Leslie?
Q: Who is Michael Leslie related to?
. . . . A: Brother of Victoria Long.
. . . .
Q: Where was Michael Leslie at the time that Brandon Adams was being cared for or taken to the hospital?
A: He was the driver of the vehicle that took Brandon to the hospital. Along with his sister, Victoria Long.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). At trial, all hearsay is inadmissible, unless it satisfies one of the exceptions to the hearsay rule. N.J.R.E. 802.
Both the Federal and New Jersey Constitutions guarantee criminal defendants the right "to be confronted with the witnesses against him." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. This right provides criminal defendants with "'a meaningful opportunity to present a complete defense.'" State v. Garron, 177 N.J. 147, 168 (2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636, 645 (1986)). "Among the primary interests protected by the right of confrontation are the opportunity for defendants to face their accusers and to cross-examine the state's witnesses." State v. Budis, 125 N.J. 519, 530-31 (1991).
In State v. Bankston, 63 N.J. 263, 271 (1973), the Court held that a detective's testimony that he went to arrest the defendant based on information received from an undisclosed informant was inadmissible hearsay that produced reversible error. In reaching this conclusion, the Court found "that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" Id . at 268. However, the hearsay rule and the Sixth Amendment are violated when an officer repeats specific information about what an unidentified declarant said regarding a crime committed by the accused. Ibid. Further, the Court reasoned that there was no need to reference the informant's tip because there were no allegations that the investigation was pursued arbitrarily. Id . at 272.
There is an exception to the Bankston rule when a defendant "opens the door" by challenging an officer's investigation as arbitrary. In State v. Branch, 182 N.J. 338, 352 (2005), the Court recognized that when a defendant "flagrantly and falsely [suggests] that a police officer acted arbitrarily or with ill motive[, ]" that officer may be permitted to refute that challenge despite the invited prejudice defendant would suffer. An officer's testimony will be admissible only if it is necessary to rebut a challenge that the officer's investigation was arbitrary and it does not produce an inference that defendant was implicated by some unknown person. Ibid. This doctrine operates to prevent defendants "from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context." State v. James, 144 N.J. 538, 554 (1996).
Throughout the course of this trial, defendant called into question Barilotti's investigation and tried to prove that the focus on defendant was based solely on "the word on the street" and not supported by eyewitnesses. Defendant challenged Barilotti on cross-examination by questioning how the nickname "Mister" surfaced. Barilotti conceded that he received this information from Leslie and Ms. Adams, who were not eyewitnesses to the shooting. The trial court found that this line of questioning "opened the door" to further inquiry into these issues and permitted the State to refute this challenge by exploring the statements of Leslie and Ms. Adams in greater detail. Specifically, the State was able to establish that Leslie, although not an eyewitness, transported the victim to the hospital, stayed with the victim at the hospital for quite some time, and was Long's brother. Since Leslie did not testify at trial, testimony regarding his statements violated both the hearsay rule and the confrontation clause, if offered to prove the truth of the matter asserted. However, as the trial court instructed the jury, this evidence was not offered for the truth of the statement, but to counter defendant's attack on the investigation.
Unlike the facts in Bankston, Leslie was not an undisclosed informant and any information he provided to the police was disclosed at trial. Detective Barilotti did not imply that he had additional information regarding defendant's guilt from an undisclosed source. We are satisfied that the trial court correctly permitted the State to elicit otherwise inadmissible hearsay in order to refute defendant's claim that Detective Barilotti arbitrarily focused his investigation on defendant.
The trial court determined that defendant's prior questioning of Barilotti "opened the door" for the State to elicit information to establish that Barilotti did not pursue defendant as a suspect arbitrarily. He testified that Ms. Adams contacted the police and asserted that Adams told her that "Mister" shot him, but he did not want her to tell anyone.
The trial court properly permitted the State to elicit testimony from Barilotti as to these out-of-court statements after defendant opened the door by attacking Barilotti's investigation of him as limited and arbitrary.
Defendant contends that the trial court's sentence of a concurrent seventeen-year term subject to NERA for attempted murder and armed robbery and a consecutive eight-year term with a five-year mandatory minimum for the certain persons weapons offense was manifestly excessive. He argues that the consecutive eight-year prison term was unfair based on the overall sentence imposed. Defendant requests that his sentence be modified or reversed and remanded for resentencing.
Pursuant to N.J.S.A. 2C:44-5(a), when a defendant receives multiple sentences of imprisonment for more than one offense, they "shall run concurrently or consecutively as the court determines at the time of sentence." "There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." Ibid. In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986), the Court recognized the need for sentencing uniformity and set forth six guidelines to assist trial courts in deciding whether to impose concurrent or consecutive sentences. In determining whether sentences for separate offenses should be served concurrently or consecutively, a sentencing court should focus on the fairness of the overall sentence. State v. Miller, 108 N.J. 112, 122 (1987).
At sentencing, the court addressed defendant's contention that the certain persons offense should not be a consecutive sentence because it was not a separate and distinct offense. The court noted this offense was a separate and distinct offense and that the purpose of the law was to send a strong message of deterrence to both defendant and the public that weapons are dangerous. The court reasoned that imposing a consecutive sentence for this offense was consistent with the Legislature's strong position against the possession of weapons.
The court's imposition of a consecutive sentence for the certain persons offense is consistent with Yarbough. First, the trial court correctly found that the weapons offense was separate and distinct from the armed robbery and attempted murder convictions because defendant's mere possession of a firearm as a person convicted of certain enumerated crimes was independent of those convictions. Second, consistent with the factors in the third guideline of Yarbough, the firearms offense was committed at a separate time and place than the attempted murder and armed robbery. In addition, the court provided defendant with the reasons for imposing a consecutive sentence on this charge.
We have considered defendant's remaining contentions in his pro se supplemental brief in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Defendant argues that the trial court's failure to conduct a Wade hearing and to take notice of the varying descriptions given by witnesses deprived him of due process. Further, he contends that if a Wade hearing was conducted, most if not all of the pre-trial eyewitnesses' statements would have been inadmissible. Defendant, however, did not request a Wade hearing before trial to challenge the identification procedure. Further, the record supports that the photo array identifications were administered fairly and were not impermissibly suggestive.
A pre-trial Wade hearing, upon motion from the defendant, is used to determine the admissibility of prior identifications. In State v. Henderson, 208 N.J. 208, 238 (2011), the Supreme Court of New Jersey found that a defendant must first "proffer . . . some evidence of impermissible suggestiveness" of a pre-trial identification to be entitled to a Wade hearing. During the hearing, if the defendant meets this threshold of establishing suggestiveness, the court then considers reliability factors. Ibid. The United States Supreme Court found five factors in assessing reliability of identification testimony: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation, and the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977) (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972)). These reliability factors are to be analyzed with regard to the totality of the circumstances. Henderson, supra, 208 N.J. at 239.
Notwithstanding defendant's failure to move for a Wade hearing, the record demonstrates no support for the claim that the photo arrays shown to Long, Santori and Robinson were impermissibly suggestive. An officer who had no connection to the investigation presented the photo arrays to each eyewitness. Each eyewitness was read the standard instruction for photo array identification and was then presented with six photographs at random. In considering the Manson factors, Long, Santori and Robinson's testimony during the photo array procedure were found to be reliable. All three were considered eyewitnesses to the shooting, and had an opportunity to view the gunman. Long and Santori were presented with photo arrays on April 2, 2010, which was three days after the shooting. In addition, Robinson and Long both appeared certain in identifying the photo of defendant as the shooter. Thus, the use of the photo arrays to obtain an identification were both reliable and not impermissibly suggestive to warrant a Wade hearing.