September 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ERIC LUNSFORD, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Essex County, Indictment No. 09-04-1146.
Joseph E. Krakora, Public Defender, attorney for appellant (William B. Smith, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
Before Judges Parrillo, Harris, and Guadagno.
Tried to a jury, defendant Eric Lunsford was convicted of aggravated manslaughter, aggravated assault, assault with a firearm, and related weapons charges in connection with an armed home-invasion that left one occupant dead and another partially paralyzed. Defendant was sentenced to twenty-five years on the aggravated manslaughter charge, and a consecutive ten-year sentence on the aggravated assault charge. He challenges his conviction and sentence by raising the following points:
DEFENSE COUNSEL WAS INEFFECTIVE, UNDER BOTH STATE AND FEDERAL CONSTITUTIONAL STANDARDS, IN NOT MOVING TO SUPPRESS THE IN-COURT AND OUT-OF-COURT IDENTIFICATIONS OF HIS CLIENT BY THE WITNESS DERRICK KEITT. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ADMITTING TESTIMONY REGARDING THE WITNESS KEITT'S PHOTOGRAPHIC IDENTIFICATION OF DEFENDANT AND HIS IN-COURT IDENTIFICATION OF DEFENDANT. (NOT RAISED BELOW).
THE PROSECUTOR WAS GUILTY OF MISCONDUCT BY SUGGESTING, DURING THE COURSE OF THE TRIAL, THAT THE WITNESS STEPHENSON WAS IN DANGER BECAUSE OF HIS TESTIMONY, BY GOING INTO HIGHLY PREJUDICIAL DETAIL AS TO THE EFFECTS HIS WOUNDS HAD HAD UPON HIM AND ENGAGING IN OTHER IMPROPER ARGUMENT. (PARTIALLY RAISED BELOW).
REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS AND THE INEFFECTIVENESS SET FORTH IN POINTS I THROUGH III, SUPRA.
THE TRIAL JUDGE ERRONEOUSLY IMPOSED CONSECUTIVE SENTENCES UPON DEFENDANT.
We have considered these arguments in light of the record and applicable legal standards, and we affirm.
We glean the following facts from the record. At the time of this incident, Jeffrey King and Everett Stephenson lived in the second-floor apartment of a three-unit building in Newark. Derrick Keitt lived on the first floor.
On August 16, 2008, at around 6:30 p.m., Keitt heard banging on his door. He looked through the peephole but did not recognize the two men at his door. Keitt ran out the back door and up the stairs to the second-floor apartment where King and Stephenson were.
King retrieved a gun from the back room and all three men went downstairs. At the bottom of the stairs, they noticed the front door had been kicked in. King noticed a man standing on the front porch and pointed his gun at him. When Stephenson and King observed a gun in the man's waistband they retrieved it after a brief struggle. Stephenson then hit the man on the top of his head with the gun. As Stephenson was about to hit the man again, he was shot in the back. A second gunman, later identified as defendant, came through the doorway and told Stephenson and King to let the first gunman go.
Defendant fired three or four times, hitting both Stephenson and King in the back. Defendant and the first gunman then fled. Stephenson realized he could not walk and dragged himself over to where King was lying. The first gunman began walking back toward the porch steps and Stephenson fired his gun at him, causing him to leave.
Before the shooting began, Keitt ran from the house toward the street. While he was running, he heard three or four shots. Once Keitt realized he was not being followed, he looked back and saw defendant and the first gunman get into a car with a third man and drive away. Keitt ran back to the house where he found Stephenson and King shot, but both were conscious.
King and Stephenson wanted Keitt to remove King's gun from the porch. Keitt mistakenly picked up the gun left by the first gunman and hid it in the backyard of another home. King's gun was left on the porch.
King and Stephenson were taken to the hospital where King died later that night. Stephenson underwent extensive rehabilitation and was unable to walk for several months.
At the police station, Keitt described the shooter and weeks later identified defendant from a photo array. At trial, Stephenson was unable to identify defendant but Keitt again identified him as the shooter. Defendant did not testify.
The jury found defendant not guilty of the murder of Jeffrey King, but guilty of the lesser-included offense of aggravated manslaughter (count one); not guilty of the attempted murder of Everett Stephenson, but guilty of the lesser-included offense of aggravated assault (count two); guilty of the fourth-degree assault with a firearm (count three); guilty of second-degree unlawful possession of a weapon without the required permit to carry same (count four); and guilty of second-degree possession of a weapon with the intent to use it against the person or property of another (count five).
Defendant was sentenced to twenty-five years for aggravated manslaughter, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the aggravated assault charge, defendant received ten years to run consecutively with the sentence on count one. Defendant also received a sentence of eighteen months on count three, to run concurrently with the sentences on counts one and two. He was sentenced to five years on count four, to run concurrently with the sentences for counts one and two, and five years for count five, to run concurrently with counts one, two, and four.
Defendant argues that his trial counsel was ineffective in not moving to suppress Keitt's in-court and out-of-court identifications of him. He acknowledges that ineffective assistance claims generally cannot be raised on direct appeal because they typically involve allegations outside the trial record, but argues we should consider this challenge, as the issues are solely contained within the trial record.
There is no automatic right to a Wade hearing, and there must first be a "threshold showing of suggestiveness" in a witness's out-of-court identification. State v. Ruffin, 371 N.J.Super. 371, 390-91 (App. Div. 2004). In establishing whether the use of an eyewitness's identification against a defendant is prejudicially suggestive, a reviewing court at the time of this trial would have applied the two-part test set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and the state law standard in State v. Madison, 109 N.J. 223, 232-33 (1988), abrogated in part by State v. Henderson, 208 N.J. 208 (2011).
In conducting the two-step analysis, a court must first decide whether the procedure in question was in fact impermissibly suggestive. Id. at 232. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." Ibid. That is, "'whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)).
Nothing in the record before us suggests that Keitt's identification of defendant was impermissibly suggestive. Although more than a month elapsed between the incident and Keitt's viewing of the photographs, that, in itself, is not sufficient to constitute impermissible suggestiveness or inadmissibility. See Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 383, 34 L.Ed.2d 401, 412 (1972) (noting that despite the lapse of seven months between the crime and confrontation, the identification was both reliable and admissible); Madison, supra, 109 N.J. at 242 (noting that the identification was admissible despite the two months that had passed between the crime and the identification).
The process employed by the Newark Police Department comported with the New Jersey Attorney General's guidelines concerning photo identification procedures. See State v. Herrera, 187 N.J. 493, 511-20 (2006). These guidelines contain two important procedural recommendations meant to further diminish any apparent impermissible suggestion in the process. Id. at 511-13. The first is to use someone other than an investigator involved in the case to conduct the photo identification process to ensure any possible non-verbal cues are eliminated. Id. at 12-13. Detective Guy Trogani, who was not involved in the investigation, was chosen to show the photo display to Keitt. The second recommended procedure is to show the photographs in sequence, "displaying one photo . . . at a time to the witness." Id. at 513-14. Keitt was shown six photographs, one at a time, and asked to sign the one he recognized. After Keitt picked the photo of defendant, he signed the photo. On a separate form, each of the photographs shown to Keitt was attached.
The elements required for a showing of ineffective assistance of counsel were established by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), and include: substandard professional assistance and ultimate prejudice to the defendant by reason thereof. The Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
"Judicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. There is consequently a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" because of the inherent difficulties associated in evaluating counsel's performance. Ibid. Thus, a defendant must "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)).
The defendant must further demonstrate how counsel's ineffective assistance prejudiced the defendant. Fritz, supra, 105 N.J. at 52. To do this, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Fritz, supra, 105 N.J. at 52; see also State v. Sheika, 337 N.J.Super. 228, 242 (App. Div. 2001) ("It is not enough for the defendant to show that the error or errors had some conceivable effect on the outcome of the trial."). There is nothing in the record before us to suggest that the procedure used in Keitt's photo identification was impermissibly suggestive or that a Wade hearing was warranted or would have been ordered had trial counsel requested it.
Trial counsel pursued a vigorous cross examination of each of the State's witnesses, particularly Keitt. Ultimately, the jury was the final arbiter of Keitt's reliability and credibility. We are satisfied that defendant did not suffer the ineffective assistance of counsel.
Defendant argues that the prosecutor's questioning of Stephenson amounted to prosecutorial misconduct. Defendant failed to raise this objection during trial and we review under the plain error standard. R. 2:10-2.
After the prosecutor asked Stephenson if he was appearing voluntarily, defense counsel objected, and a discussion took place with the trial court. The prosecutor explained that the question was not intended to suggest that Stephenson was afraid of testifying. Rather, it was meant to explain that the State had paid to bring him to trial. Defense counsel represented that he had no intention on inferring that Stephenson was testifying because he was paid and the court directed the prosecutor to rephrase the question and ask only if Stephenson was appearing because of a subpoena. When Stephenson replied "yes, " the inquiry ended.
Defendant also contends that the prosecutor's questions concerning the location of the facility where Stephenson was undergoing rehabilitation "suggested that the witness might want to keep his present location to himself[.]"
Stephenson testified that, after four days in the hospital, he was transferred to the Kessler Institute for Rehabilitation. He remained at Kessler for approximately one month, then transferred to a facility in another state. The prosecutor then asked Stephenson where he went, but cautioned that he "[did not] have to be specific as to which state[.]" Stephenson replied that he went to an out-of-state rehabilitation facility where he remained for six months. We find both of these claims to lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Defendant relies on State v. Muhammad, 145 N.J. 23, 47-48 (1996), in arguing that the prosecutor's attempt to highlight Stephenson's gunshot injuries and the impact of those injuries amounted to prosecutorial misconduct because it "was a not-so-subtle suggestion that the shooting of Stephenson thwarted his ability to live a fulfilling life." We disagree.
Muhammad involved a challenge to the use of victim impact evidence in the penalty phase of a capital case and provides no support to defendant's claim of prosecutorial misconduct. Here, defendant was charged with the attempted murder of Stephenson and was ultimately convicted of second-degree aggravated assault. The prosecutor's inquiry as to the extent of Stephenson's injuries and his rehabilitation process was proper and relevant to the charges considered by the jury.
Finally, defendant challenges statements made by the prosecutor during summation referring to the criminal history of both Stephenson and Keitt. In doing so, the prosecutor stated, "[t]he Judge will tell you how you can and cannot use those prior convictions to judge their credibility." Defendant challenges the prosecutor's statement that Stephenson "was out of trouble for nine years, otherwise a warrant would have popped up and he wouldn't have been able to be on the run for nine years." There was no objection to this statement at trial.
While we agree that the absence of a warrant for Stephenson's arrest over a nine-year period is not proof that he did not engage in criminal activities, the statement was made in response to a searing attack on Stephenson's credibility by defense counsel and we do not find that it was clearly and unmistakably improper or that it substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.
Prosecutorial misconduct is found only when a prosecutor's conduct exceeds the role he or she has been entrusted to carry out. State v. Smith, 212 N.J. 365, 402-04 (2012). A prosecutor is nonetheless entitled to argue the merits of the State's case "graphically and forcefully, " State v. Feaster, 156 N.J. 1, 58 (1998) (quoting State v. Marquez, 277 N.J.Super. 162, 171 (App. Div. 1994)), and is not required to present those arguments as if he were addressing a lecture hall. State v. Johnson, 31 N.J. 489, 510-11 (1960). The duty of the prosecutor "'is as much . . . to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. Farrell, 61 N.J. 99, 105 (1972)).
Nothing in the record before us suggests that the prosecutor's conduct "exceeded these bounds[.]" See Smith, supra, 212 N.J. at 403. Furthermore, none of the conduct by the prosecution was "clearly capable of producing an unjust result, " therefore requiring an appellate court to find plain error. R. 2:10-2.
Finally, defendant challenges the consecutive sentences imposed for the aggravated manslaughter of King and the aggravated assault of Stephenson.
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (internal quotation marks omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). When the 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 "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); State v. Cassady, 198 N.J. 165, 183-84 (2009).
Our Supreme Court set forth guidelines to assist sentencing courts when deciding whether to impose a consecutive sentence. See 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 Yarbough factors, reaffirmed many times since their introduction, serve as a guidepost, not a mandate, and are enumerated as follows:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
State v. Carey
168 N.J. 413
These factors should be applied qualitatively, not quantitatively. Carey, supra, 168 N.J. at 427. The focus is on the gravity of the offense. Id. at 422. A court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences. Id. at 427-28; see also State v. Swint, 328 N.J.Super. 236, 264 (App. Div.) (Even when offenses are connected by a "unity of specific purpose, " "somewhat interdependent of one another, " and "committed within a short period of time, " concurrent sentences need not be imposed.) (internal quotation marks omitted), certif. denied, 165 N.J. 492 (2000).
Applying the Yarbough standards, the trial court stated:
the crimes and their objectives were predominantly independent of each other. The crimes involved separate acts of violence or threats of violence. The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of abhorrent behavior. Any of the crimes involved multiple victims. The convictions for which the sentences are to be imposed are numerous.
[The Supreme Court] also indicated there should be no double counting of aggravating factors and successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.
The court determined that "the present case strongly militates in favor of consecutive terms." The court then found aggravating factors 1 (offense committed in especially heinous, cruel or depraved manner), 3 (risk of committing another offense), and 9 (need to deter) applied. N.J.S.A. 2C:44-1(a)(1), (3), and (9). The court also noted defendant's juvenile record of four deferred dispositions as well as his record as an adult with four arrests.
In challenging his sentence, defendant relies on the Court's decisions in Carey and State v. Molina, 168 N.J. 436 (2001), and argues consecutive sentences should be reserved for cases where drunk driving resulted in multiple injuries or deaths. In Carey, the Court held it was not an abuse of discretion to impose consecutive sentences on a drunk driver whose actions resulted in the deaths of two people and grave injuries to two others. Carey, supra, 168 N.J. at 431. Molina also involved consecutive sentences for vehicular homicide where the defendant caused more than one death. Molina, supra, 168 N.J. at 438. Defendant argues the holding in Carey is limited to "the phenomenon of drunk driving and should not be expanded to encompass a case such as this without express instruction from the Supreme Court." We disagree and find this argument lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
The judge's findings relevant to the Yarbough factors and aggravating and mitigating factors are supported by competent credible evidence in the record. In light of the severity of the crimes committed by defendant, the judge's decision to impose consecutive sentences was not an abuse of discretion.