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State v. Robinson

Superior Court of New Jersey, Appellate Division

October 29, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
LATIF ROBINSON, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2013

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 09-02-0645 and 09-05-1745.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Yannotti, Ashrafi and St. John.

PER CURIAM

Defendant Latif Robinson appeals from his conviction and sentence on burglary, assault, and weapons charges after a jury found that he fired shots into and inside a neighbor's house because he was annoyed by loud music. His defense at trial was that he was not the shooter, but three eyewitnesses identified him. We affirm.

In the early morning hours of April 19, 2008, relatives and friends of Sylvia Pabon were gathered at her house on Pearl Street in Camden. Brothers Isadiel and Israel Falcon were outside, and music was playing on a car radio. A young man, later determined by means of photo identifications to be defendant, approached the Falcons and complained about how loud the music was. He punched Isadiel Falcon in the face. Falcon retreated into Pabon's house when he saw defendant reach for his waistband, fearing that he was armed. Falcon knew defendant was staying at a house two doors away.

A short time later, another man, later identified as Taj Mays, went to the Pabon house and attempted to make peace. The people at Pabon's house believed Mays was defendant's brother. Mays told them that defendant was no longer armed. But defendant soon returned and confronted the people at Pabon's house a second time. He began firing a semi-automatic handgun into the house. He then entered the house and fired several more shots. The occupants hid or escaped through a back door. Someone yelled that there were children in the house. Pabon got up and told defendant to stop the shooting. He stopped shooting and left. Israel Falcon suffered a graze wound to his shoulder, but no one else was hit or otherwise injured.

When the police arrived, Isadiel Falcon pointed out the neighboring house as the place where the police would find the shooter. Defendant's grandmother lived at the neighboring house, and she told a detective that defendant sometimes stayed with her. This information prompted the police to obtain a photo of defendant from their files. At the scene of the shooting, the grandmother and Israel Falcon were shown the photo. The grandmother confirmed that the photo was her grandson, and Israel Falcon put his signature on the back of the photo to indicate his identification of the shooter.

The police prepared two photographic arrays, one included defendant's photo (without Israel's signature) and another one that of Taj Mays. At police headquarters later that morning, three of the victim-witnesses — Pabon, Isadiel Falcon, and Tinamarie Santos — selected defendant's photo from the array as the person who had fired the shots. They all gave recorded statements to the police about the shooting. Santos and Isadiel Falcon also identified Mays and told the police that Mays was with defendant but was struggling with him and trying to stop the shooting.

At the trial two years later, the victim-witnesses were reluctant to testify, or they gave testimony that was inconsistent with their statements on the day of the shooting. Nevertheless, on the strength of the eyewitness testimony and identifications, the jury convicted defendant of one count each of burglary, possession of a firearm for an unlawful purpose, aggravated assault, simple assault, and possession of a firearm by a convicted person. The jury acquitted defendant of attempted murder and other assault and weapons charges.[1]

At defendant's sentencing, the court merged the assault charges with other counts of conviction and sentenced defendant to seven-and-a-half years in prison on the burglary charge, with eighty-five percent of the sentence to be served without parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. It also sentenced defendant to five years for possession of a firearm for an unlawful purpose, concurrent to the burglary sentence, and seven-and-a-half years with five years of parole ineligibility for possession of a firearm by a convicted person, the last sentence to run consecutively to the other sentences.

Defendant was indicted separately for another incident that occurred on October 18, 2008, involving the stabbing of a former roommate. He entered into a plea agreement and pleaded guilty to a charge of aggravated assault on that indictment.[2]

Defendant's aggregate sentence on all State and federal charges was fifteen years imprisonment with eleven years and about four months of parole ineligibility.

Defendant raises the following arguments on this appeal:

POINT I
THE TECHNIQUES EMPLOYED BY LAW ENFORCEMENT IN DISPLAYING PHOTOGRAPHS TO PROSPECTIVE WITNESSES WERE IMPERMISSIBLY SUGGESTIVE, AND THE CONDITIONS OF THE WITNESSES WERE SUCH THAT THEIR OUT-OF-COURT AND IN-COURT IDENTIFICATIONS WERE NOT RELIABLE. AS A RESULT, THE COURT SHOULD HAVE BARRED THE USE OF ALL IDENTIFICATIONS.
POINT II
VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED MR. ROBINSON OF A FAIR TRIAL AND REQUIRED THAT THE CONVICTIONS BE REVERSED (PARTIALLY RAISED BELOW).
A. The Remarks of the Prosecutor Insinuated that Mr. Robinson was Responsible for Ms. Pabon's Fear of Testifying.
B. The Prosecutor's Opening Statement Exceeded the Boundary of Fair Comment.
C. The Prosecutor's Summation Remarks Deprived Mr. Robinson of a Fair Trial.
POINT III
THE COURT DEPRIVED MR. ROBINSON OF DUE PROCESS GUARANTEED TO HIM BY THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, PARA. 1 OF THE NEW JERSEY CONSTITUTION BY INSTRUCTING THE JURY THAT THE DEFENSE HAD THE BURDEN OF PROOF (NOT RAISED BELOW).
POINT IV
THE COURT ERRONEOUSLY DENIED THE DEFENSE REQUEST FOR A CLAWANS CHARGE REGARDING TAJ MAYS.
POINT V
THE COURT SHOULD HAVE HELD A HEARING PURSUANT TO STATE V. GROSS, 121 N.J. 1 (1990) REGARDING THE TESTIMONY AND STATEMENTS OF TINA MARIE SANTOS AND ISADIEL FALCON.
POINT VI
THE COURT ERRED BY ADMITTING HEARSAY EVIDENCE AS EVIDENCE OF AN EXCITED UTTERANCE, AND THAT ERROR DEPRIVED MR. ROBINSON OF A FAIR TRIAL.
POINT VII
THE TRIAL COURT ERRED BY ALLOWING DETECTIVE PROVENZANO TO TESTIFY AS TO WHETHER THERE WERE BULLET HOLES IN THE WALLS OF THE PABON RESIDENCE WHEN HIS EXPERTISE IN DETERMINING SUCH WAS NOT ESTABLISHED.
POINT VIII
ALL THE CHARGES WHICH RESULTED IN CONVICTION AT TRIAL SHOULD HAVE BEEN MERGED FOR SENTENCING.
POINT IX
THE SENTENCE IMPOSED WAS EXCESSIVE, AND CONCURRENT SENTENCES SHOULD HAVE BEEN IMPOSED FOR ALL COUNTS OF INDICTMENT 09-02-0645-I.

Defendant has also filed a pro-se brief raising the following additional issues:

I. PROSECUTORIAL MISCONDUCT DEPRIVING THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, WHERE IN THE FOURTEENTH AMENDMENT, IT SAYS, "NOR BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW."
II. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON INCONSISTENT AND CONTRADICTORY STATEMENTS DURING TRIAL, WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL, A CONSTITUTIONAL RIGHT PROMISED IN THE FOURTEENTH AMENDMENT.
III.THE COURT DEPRIVED DEFENDANT OF DUE PROCESS PROMISED TO HIM IN THE FOURTEENTH AMENDMENT ALLOWING GRAND JURY "MISCONDUCT".

I.

Courts have recognized that eyewitness identifications can be unreliable, especially when based on unduly suggestive identification procedures. See, e.g., State v. Madison, 109 N.J. 223, 232 (1988). Police procedures, such as showing an eyewitness a single photograph of the suspect, or an array in which the suspect "recurs or is in some way emphasized, " can cause a witness to "retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent" identifications. Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). When produced by impermissible law-enforcement procedures, admission at trial of unreliable witness identifications violates the due process rights of a defendant. Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967); State v. Koedatich, 112 N.J. 225, 316 (1988).

The United States Supreme Court has devised a two-pronged test to determine whether an eyewitness identification is admissible. First, the trial court must determine whether the identification procedure is "impermissibly suggestive." Manson v. Brathwaite, 432 U.S. 98, 107-09, 97 S.Ct. 2243, 2249-50, 53 L.Ed.2d 140, 149-51 (1977). Second, if the answer is yes, the court must examine the "totality of the circumstances" to determine whether the identification is nonetheless reliable enough for the jury to consider. Id. at 110-14, 97 S.Ct. at 2251-53, 53 L.Ed.2d at 151-53. The identification will be considered reliable so as long as the procedures and surrounding circumstances do not lead to a "very substantial likelihood of irreparable misidentification." Simmons, supra, 390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253; accord Manson, supra, 432 U.S. at 116, 97 S.Ct. at 2254, 53 L.Ed.2d at 155.

The second part of the test, the reliability of the identification, addresses the totality of the circumstances, and the factors that may affect any given case are not capable of complete enumeration. In Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 412 (1972), the Court set out five factors:

(1) The opportunity of the witness to view the criminal at the time of the crime.
(2) The witness's degree of attention.
(3) The accuracy of the witness's prior description of the criminal.
(4) The level of certainty demonstrated by the witness at the confrontation.
(5) The length of time between the crime and the confrontation.

In 1988, the New Jersey Supreme Court confirmed that the federal constitutional test would apply to eyewitness identification evidence in New Jersey. Madison, supra, 109 N.J. at 232. In 2011, however, the Court revised the so-called Manson/Madison framework under State constitutional standards. State v. Henderson, 208 N.J. 208, 285-98, 287 n.10 (2011). At the same time, the Court determined that the "revised principles" of Henderson would apply "purely prospectively, " "to future cases only." Id. at 220, 302. Since Henderson was decided after defendant's trial in 2010, its principles and standards do not apply to this case, and we must judge the admissibility of the testimony identifying defendant under the Manson/Madison framework.

Defendant acknowledges but essentially ignores the prospective application of Henderson. He argues that much of Henderson was "common sense" and thus instructive in evaluating the identification procedures used in this case. In particular, defendant contends that the identifications were impermissibly suggestive because: (1) the other photographs used in the photo array were too dissimilar to defendant's, specifically, that his picture was distinguishable because of his "unique hairline, " his "relative youth and round facial shape, " and the "position of his right ear"[3]; (2) the witnesses were under considerable stress and fear and were drunk when they identified him; and (3) Isadiel Falcon was shown a single photograph of him before being shown the array.

We need not reach the reliability prong of the Manson/ Madison analysis because defendant failed to show that the identification procedures used by the police were impermissibly suggestive. Even after Henderson, the burden of proof lies with the defendant to show initially that a pretrial identification procedure was suggestive, and ultimately that a witness's identification of him is so unreliable as to be inadmissible. Id. at 288-89. Here, the trial court conducted a Wade[4] hearing at which it examined the photo arrays and determined that they were not unduly suggestive.

Defendant did not present evidence that the photos in the array included "filler" suspects who looked so different from him as to emphasize him in the array. Neither defendant's hairline nor the fact that his photo cut off a different part of his ear than the others is sufficient to satisfy his initial burden of showing that the array was suggestive.

Nor did anyone say anything to direct the witnesses to defendant's photo. As developed at the Wade hearing and at the trial, Detective Provenzano investigated at the shooting scene that night and prepared the two photo arrays that were used separately to identify defendant and Taj Mays. After compiling the arrays, Provenzano had no further involvement in showing them to witnesses, a procedure undertaken so there would be "no bias in showing the photographs." Detective Watkins showed the arrays to the witnesses. He had no knowledge of or involvement in the investigation, making the administration of the out-of-court photo identification "double-blind." See Henderson, supra, 208 N.J. at 248-49.

Defendant contends that the police showed Isadiel Falcon a single photograph of him before showing him the array. This argument arises from a snippet of Falcon's testimony on cross- examination that could be interpreted in that way, but the interpretation is strained. Falcon also said he was taken to police headquarters before being shown any photos. In addition, police detectives testified and contradicted any suggestion that Isadiel Falcon was shown a single photo at the scene. Israel was the brother who was shown a single photo at the crime scene, but Israel was not a witness at the trial. The trial judge concluded that Isadiel Falcon was not shown an individual photo. That finding was supported by substantial credible evidence.

Defendant has given us no basis to disturb the trial court's finding that the photo array and the out-of-court identification procedure were not impermissibly suggestive.

Furthermore, the identifications were highly reliable. All the witnesses got a good look at the shooter. At least two of them were familiar with him as an individual from the neighborhood.

Pabon testified at the trial that she was inside her house when the shooter began firing.[5] Fearing for the safety of the children and others in the house, Pabon confronted the shooter. Later, at the police station, she viewed the photo array. The police asked her if she recognized anyone, and then asked her to sign the picture that she identified as the shooter, which she did. In the courtroom, Pabon did not point out defendant as the shooter, asserting that she did not "want to hurt anyone" and did not "want any problems." But she acknowledged her earlier identification of defendant's photo at the police station.

The State's next identification witness was Santos who, at the time of the shooting was dating Isadiel Falcon. She testified that she was inside the house when the shooting started, and that she was "drinking that day" and was "nervous and scared, " which affected her ability to remember the events. She identified defendant in the courtroom as the shooter, as she had by means of the photo array shown to her immediately following the incident. She further explained that when defendant entered the house shooting a handgun, he was accompanied by a second individual (later identified as Mays) who was struggling to take the gun away and to stop the shooting.

Isadiel Falcon was the third identification eyewitness for the State. His testimony deviated significantly from the recorded statement the police took from him a few hours after the shooting. Nevertheless, he testified that he was outside the house when defendant argued with him about music playing on a car radio and then punched him in the face. Falcon considered fighting back, but he ran inside the house once defendant "act[ed] like he was going to pull something out" from his waistband, which Falcon presumed was a gun. He testified that following the altercation, defendant went into the neighboring house, and that defendant's "friend" came to apologize and said "everything was fine." A short time later, however, defendant came back and fired shots inside Pabon's house. Falcon did not see exactly what happened because he hid behind a couch. As Santos had, Falcon saw Mays struggling with defendant over the gun. Also, like the other eyewitnesses, the police showed Isadiel Falcon the photo array, from which he selected defendant as the shooter.

Defendant argues that the witnesses viewed the photos at a time when they were under great stress and were impaired by alcohol, but this argument does not address suggestiveness of police conduct. Circumstances attending the identification that were not in control of law enforcement officials may affect the "weight rather than admissibility" of the identification evidence, and they are ordinarily for the jury to consider. See Koedatich, supra, 112 N.J. at 314-16. Defendant's attorney vigorously cross-examined the eyewitnesses about their ability to observe the shooter, their stress levels, their intoxication, their fatigue, and their focus on the gun rather than the shooter's face. The trial court correctly left it to the jury to determine whether the witness identifications proved defendant's guilt beyond a reasonable doubt.

"[T]he trial court's findings that photographic identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008) (citing State v. Locurto, 157 N.J. 463, 470-71 (1999)). We find no error in the trial court's admission of identification testimony under the Manson/Madison standard applicable to this case.

II.

Defendant next challenges several remarks made by the prosecutor in her presentations to the jury. He argues that the prosecutor's opening statement exceeded the bounds of fair comment by referring to the victims' "luck" in not being killed, and that the prosecutor unfairly denigrated the defense in her summation by indicating that she was "a little confused" by defense counsel's argument. We do not find sufficient merit in these arguments to warrant more than a brief comment in this opinion. R. 2:11-3(e)(2). Defendant was tried on two counts of attempted murder. It was not improper for the prosecutor to refer to the victims' "luck" because the gunfire missed them. Also, a brief reference in argument to being "confused" by an adversary's argument is not denigration of the adversary. It is a comment within the proper bounds of an attorney's argument.

Defendant argues that the prosecutor unfairly insinuated in her examination of Pabon and in her summation that defendant had threatened or otherwise intimidated the witnesses. We find no merit in this argument. Pabon did not wish to testify. She said so explicitly. She was initially unresponsive in front of the jury. Outside the presence of the jury, the court ordered her confined pending a contempt hearing, and she later testified only to avoid further confinement.

Defendant focuses on a comment made by the prosecutor in the jury's presence, after being given permission to lead the witness:

PABON: Well, I'll have to repeat this that I do not want to be here. I do not want — do not want to proceed with the case. I'm here against my own volition. I don't even want to be here for any reason.
PROSECUTOR: That's great, Ms. Pabon. You don't want to be here because you're afraid, right?

Defense counsel immediately objected, and the witness did not answer the question. After a sidebar, the prosecutor returned to the theme of Pabon's fear:

PROSECUTOR: You don't want to testify because you're afraid. Isn't that right?
A: From the very beginning.
Q: You were afraid from the very beginning?
A: No.
Q: Miss Pabon, I understand that you have things that you want to say. You've told us you don't want to be here. You've told us you told the police initially you don't want to be here. You're here and you need to answer the questions that I ask you. Okay?
A: And if I don't want to?
Q: If you don't want to answer, then the judge will tell you what can happen to you . . . .

The judge then stopped the examination, but the witness continued that she was present in court only because she had received a subpoena. When given a final chance to testify in open court, Pabon stated in the jury's presence: "I don't want to speak. Lock me up. If this is the way it is, then that's what I want." Later, rather than wait for a contempt hearing, Pabon decided that she would testify. When called again before the jury following Santos's testimony, she acknowledged her identification of the defendant from a photo array, but she refused to identify him in the courtroom.

In her closing argument, the prosecutor said:

I want to talk to you a little bit about the other witnesses that you heard from. I mean, no one tried to hide the fact, not them, not counsel, that they didn't want to be here. The question is why didn't they want to be here? Did they not want to be here because they lied before? They didn't say that. Did they not want to be here because they made a mistake in ID? They didn't say that. They certainly could have. Did they not want to be here because they were so drunk before they couldn't remember anything? Or was that convenient because they were afraid? Counsel said, you know, we don't know what they were afraid of. Yeah, Sylvia Pabon told you what she was afraid of. She said, "I don't want to get anyone in trouble." Well, who's the person that her testimony could possibly get in trouble? The person who did this, the defendant. They're afraid.
The evidence before you is that the defendant was angry the music was too loud. . . . [H]e was staying in the same neighborhood as them. He didn't go over there with a mask. He goes over there. They know who he is. They know where he lives. He pulls out a gun and starts shooting because the music is too loud. That's pretty terrifying. They know that's what happened. Is it reasonable that they think if they come in here and testify and tell and point at him and accuse him that that's going to be upsetting?
So because they didn't want to be in here, does that mean they lied? Because they didn't want to be in here, does that mean that you shouldn't care? Should the police just go okay, you don't want to cooperate, see you later, thanks for telling us it was him, we can't do anything else. Should the police just say you know what, next time if you're not going to testify and you're not going to cooperate, just please don't call us when anyone shoots at you?

While a prosecutor is "entitled to sum up the State's case graphically and forcefully, " State v. Swint, 328 N.J.Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000), her first duty remains to "see that justice is done." State v. Smith, 212 N.J. 365, 403 (2012). Improper argument by the prosecutor will not result in reversal unless it was "so egregious that it deprived the defendant of a fair trial." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83 (1999)) (internal quotation marks omitted); accord State v. Feaster, 156 N.J. 1, 59 (1998). It would have been improper for the prosecutor to suggest to the jury that defendant had somehow intimidated witnesses after charges were brought against him without support in the record and leave of the court to present such evidence. See Hall v. United States, 419 F.2d 582, 584-85 (5th Cir. 1969) (comment in closing argument that witness was "scared to death" of defendant was improper because it was a "bald assertion of fact not in evidence"); People v. Mullen, 566 N.E.2d 222, 405-06 (Ill. 1990) (suggesting that witness was reluctant to testify for fear of retaliation from defendant was plain error because it was unsupported by the evidence).

Contrary to defendant's argument, the prosecutor's comments did not suggest improper conduct on defendant's part in intimidating the witnesses after he was charged. Rather, they were an explanation of the witnesses' fear of testifying arising from the shooting incident itself. In State v. Plowden, 126 N.J.Super. 228, 229-30 (App. Div.), certif. denied, 64 N.J. 504 (1974), the defendant was charged with murder and assault for shooting two persons with whom he had been playing cards. In summation, the prosecutor told the jury that three of the witnesses feared the defendant. Id. at 231. The court found the comment "justified since those witnesses were or had been in the apartment where the shooting occurred, and there was testimony that when defendant got ready to leave the apartment he said he would kill anyone who identified him." Ibid. Because the comments were reasonable inferences from the evidence, they fell within the boundaries of fair argument. Id. at 231-32.

Here, Pabon told the jury she did not want to testify. It was not error to ask whether she was afraid to testify, as long as the implication was that the shooting itself was the cause of her fear. The prosecutor did nothing in the presence of the jury to suggest otherwise, namely, that defendant had made any threats to any witnesses.

Furthermore, defendant did not object to the prosecutor's remarks in summation. Therefore, we review the argument on appeal under the plain error standard. R. 2:10-2; State v. Papasavvas, 163 N.J. 565, 626, corrected by 164 N.J. 553 (2000). The defense was based on discrediting the eyewitnesses, and defense counsel argued in his summation that "nobody was very sure as to what they wanted to testify to or why." The defense also raised the issue of the witnesses' fear, calling it the prosecution's "excuse" for the reluctant and inconsistent testimony, and arguing that "[w]e don't know what they were scared of." It was fair comment by the prosecutor to respond that any inconsistency or reluctance of the witnesses was explained not by drunkenness, inattention, or lying, but by being required to point out in court the individual who the witnesses knew lived nearby and had fired a gun indiscriminately in their home. As in Plowden, the prosecutor here went no further than the evidence allowed in suggesting that the witnesses were frightened because of the criminal incident itself rather than subsequent conduct of the defendant. The comments were not error and do not provide a basis for reversal of the jury's verdict.

III.

Defendant argues next that the trial court shifted the burden of proof to him on the separately-tried charge of possession of a firearm by a convicted person. In introducing that charge to the jury during the bifurcated proceedings, the trial judge misspoke as follows: "In order for you to find the defendant guilty, the defendant must prove each of the following elements beyond a reasonable doubt . . . ." Defense counsel did not object. The only conclusion that a rational juror could have drawn is that the judge did not mean to say defendant had to prove his own guilt, which was both illogical and inconsistent with the many previous instructions. When instructing the jury at the beginning of the case and when reading the final charge, the trial judge made numerous statements correctly and unequivocally placing the burden of proof on the State to prove the elements of each offense. In addition, defense counsel's closing argument on the separate possession charge reminded the jury that the State "ha[s] the same burden here as they did before."

The judge's brief slip of the tongue was swamped by correct instructions, and the jurors demonstrated an understanding of the prosecution's burden of proof by scrutinizing the charges and acquitting defendant on a number of them. The isolated mistake had no "capacity to bring about an unjust result." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970)). It was not plain error warranting reversal. R. 2:10-2.

IV.

Defendant requested a charge pursuant to State v. Clawans, 38 N.J. 162 (1962), to address the State's decision not to call Mays as a prosecution witness and its failure to produce Israel Falcon as a witness. Despite the prosecution's argument that it was unable to locate Israel Falcon, the court agreed to give a Clawans charge as to him, but it also allowed the prosecution to present testimony from an investigator about the efforts made to find Israel Falcon. The court denied the defense request for a Clawans charge regarding Taj Mays.

In Clawans, the Supreme Court stated:

Generally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him. But such an inference cannot arise except upon certain conditions and the inference is always open to destruction by explanation of circumstances which make some other hypothesis a more natural one than the party's fear of exposure. . . .
For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved.
For obvious reasons the inference is not proper if the witness is for some reason unavailable or is either a person who by his position would be likely to be so prejudiced against the party that the latter could not be expected to obtain the unbiased truth from him, or a person whose testimony would be cumulative, unimportant or inferior to what had already been utilized.
[Id. at 170-72 (citations omitted).]

The circumstances that will justify a Clawans charge have been further clarified. The trial judge should make four determinations before giving the charge:

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.
[State v. Hill, 199 N.J. 545, 561 (2009) (alteration in original) (quoting State v. Hickman, 204 N.J.Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986)).]

In this case, with the exception of factor number three — that the testimony of Mays would elucidate relevant and critical facts in issue — the other criteria for a Clawans charge were not shown. The prosecution did not have superior control or power over Mays, and there was no special relationship. Mays was equally available to defendant. Also, Detective Provenzano testified that Mays was uncooperative when he questioned him after the shooting. Mays had a close relationship with defendant and could not be expected to produce the "unbiased truth." Clawans, supra, 38 N.J. at 171. Given the choice among several witnesses who saw essentially the same events, it was within the prosecution's right to call somewhat more cooperative witnesses who had earlier spoken willingly to the police.

The trial court acted well within its discretion in declining to give a Clawans instruction as to Mays.

V.

Defendant argues that the trial court erroneously permitted the prosecution to introduce statements made by Santos and Isadiel Falcon to the police on the day of the shooting.

N.J.R.E. 803(a)(1) permits the admission of a witness's prior statements that were inconsistent with the witness's trial testimony for the purpose of proving the substance of the prior statements. Where the party that called the witness wishes to introduce a prior inconsistent statement for its truth, that party must demonstrate that the statement "is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability." Ibid. Here, the statements were recorded. Generally, the preliminary determination of reliability should be conducted in a hearing outside the presence of the jury. State v. Gross, 121 N.J. 1, 15-17 (1990); accord State v. Baluch, 341 N.J.Super. 141, 179 (App. Div.) (citing State v. Spruell, 121 N.J. 32, 46 (1990)), certif. denied, 170 N.J. 89 (2001).

The trial court instructed the jury that it could consider the prior inconsistent statements of Pabon, Falcon, and Santos for their truth, but the court did not distinguish between prior statements offered by the prosecution and those offered by the defense. Defendant argues it was reversible error not to conduct a Gross hearing with respect to the prosecution's use of the prior statements, and not to make finding as to their reliability.

On direct examination, the prosecutor used a transcript of Santos's prior recorded statement to refresh her recollection rather than to introduce it as direct evidence contradicting her trial testimony. On redirect examination, the prosecutor challenged some of Santos's testimony by use of the prior statement and then sought to introduce the statement in evidence. The court denied the request, ruling that there were no material inconsistencies between Santos's testimony and her prior statement, and she had explained the areas that the prosecutor used in an attempt to impeach her testimony. There was no error in failing to hold a Gross hearing as to Santos's prior statement.

The prosecutor used Isadiel Falcon's statement more extensively during his testimony. Falcon attempted to back away from parts of his statement given under oath a few hours after the shooting. For example, he had told the police that defendant displayed a gun after punching him. At trial, however, he testified as follows:

Q: [A]fter you were punched by the defendant, what did you do?
A: I ran.
Q: Before you ran, did he show you anything?
A: No, he didn't show me nothing.

The prosecutor then showed Falcon a transcript of his recorded statement and asked:

Q: [D]o you see the part where you talk about the fact that defendant hit you? It's the fifth line down in the large paragraph. Right here. See that part?
A: Yeah.
Q: What did you tell the police happened right before you ran.
A: No, I know what it says here but I didn't say that.
Q: What does it say there?
A: It says he pulled a gun out. He didn't pull the gun out.
Q: You're saying that didn't happen?
A: No.
Q: Okay. But you did say it on that day.
A: I don't remember saying it.
Q: Okay. When did you first see the gun?
A: In the house.

Defense counsel did not object to this use of Falcon's prior statement to impeach Falcon's trial testimony.

After defense counsel elicited from Falcon that he had not reviewed or signed his statement, the prosecutor asked to play portions of the taped statement to demonstrate that Falcon had in fact been given the opportunity to review and make corrections of his statement but had declined to do so. Defense counsel did not object, stating: "I can't tell the prosecutor what to do. If she's going to play parts of the tape, I may play the whole tape." The next morning, parts of Falcon's taped statement were played before the jury.

The inconsistent statements introduced by the prosecutor were offered for their truth. Had defense counsel objected, the trial court should either have made a finding of reliability before their admission or instructed the jury that it could only consider the statements as bearing on Falcon's credibility, and not for the truth of what Falcon had earlier told the police. However, defense counsel did not object, and in fact tried to turn the inconsistencies to defendant's advantage. Moreover, the issues on which the prosecutor fixated, namely, defendant's possession and brandishing of a gun during the initial altercation about the car radio, were not accepted by the jury as proven beyond a reasonable doubt, thus resulting in defendant's acquittal on a charge of aggravated assault by allegedly pointing a gun at Falcon. We conclude the admission of Falcon's prior statement was not clearly capable of producing an unjust result; it was not plain error.[6]

VI.

Finally as to alleged trial errors, we find insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), in defense counsel's arguments in Points VI and VII of his brief that the trial court abused its discretion in admitting testimony by a detective that Isadiel Falcon pointed to the neighboring house as the location where the shooter could be found, and also testimony of a detective that he observed bullet holes at Pabon's house. We also find insufficient merit to warrant discussion of defendant's pro se Point III that there was grand jury misconduct in returning the indictment against him.

VII.

With respect to the aggregate fifteen-year sentence imposed, we find no merit in defendant's contention that counts 3, 4, 7, and 8 should all have merged, or that the court failed to make adequate independent findings of the applicable aggravating factors. We address primarily defendant's argument that he should not have been sentenced to a consecutive term of seven-and-a-half years for his conviction on Count 10, the charge of possession of a firearm by a convicted person.

In deciding to impose consecutive sentences for counts 3 and 10, the judge referred specifically to State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986), and stated:

I impose consecutive sentences for count ten because the elements of this offense are different from the elements of counts three and four. That is, they are based on defendant's prior conviction for a predicate offense. In addition, [Yarbough] states that there should be no double counting of aggravating factors. Here aggravating factor[s] [were] applied only to count three. . . .

The Code of Criminal Justice provides that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." N.J.S.A. 2C:44-5(a). In making this discretionary determination, the Supreme Court held in Yarbough that the sentencing court should consider whether:

(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 and 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.
[Yarbough, supra, 100 N.J. at 644.]

Also, "there can be no free crimes in a system for which the punishment shall fit the crime." Id. at 643.

Defendant relies on State v. Copling, 326 N.J.Super. 417 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000), to argue that his purpose in possessing the gun was already addressed in his sentence on the burglary and assault charges. In Copling, the defendant was convicted of murder of one victim, aggravated manslaughter of a second victim, and possession of a handgun without a permit, among other crimes. Id. at 422. We reversed a consecutive sentence imposed on the weapons offense, concluding that the objective of the charge was similar to that of the homicides — "to protect the public and individuals from unlawful killing." Id. at 441.

We agree with the State that N.J.S.A. 2C:39-7, which prohibits possession of a firearm by a convicted person, addresses a distinct harm from N.J.S.A. 2C:39-4(a), which prohibits possession of a weapon for a specified unlawful purpose, and from N.J.S.A. 2C:18-2, which prohibits unlawful entry into a house with the intent to commit a crime. The harm addressed by N.J.S.A. 2C:39-7 is the danger to the public from the mere possession of weapons by a felon. See State v. Middleton, 143 N.J.Super. 18, 23 (App. Div. 1976), aff'd, 75 N.J. 47 (1977) ("one of the evils sought to be suppressed by the statute was the possibility of any show of force, real or apparent, by one who had already been proven a felon"). The offense does not require that the crime be connected to any other offense or unlawful purpose, and it occurs the moment that a convicted person takes possession of a firearm.

Here, the crime was committed before defendant ever decided to begin firing the gun and before he committed the crime of burglary by entering Pabon's house with intent to commit crimes there. Evidence was presented that defendant was armed during his first confrontation with Isadiel Falcon, in particular, because Mays later approached the occupants of Pabon's house and tried to assure them that he had secured the gun. Defendant's retrieval of the gun and subsequent possession escalated the criminal episode, resulting in the highly dangerous shooting incident. We conclude the court did not err in imposing consecutive sentences on the two crimes, one of which was designated to protect the general public and the other the particular victims of the incident.

Affirmed.


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