December 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JASON PETTIS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2013.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-08-1370.
Joseph E. Krakora, Public Defender, attorney (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
Before Judges Reisner, Ostrer and Carroll.
Following an October 2011 jury trial, defendant Jason Pettis was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11- 3a(1) or (2) (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). In a second trial,  the same jury convicted defendant of second-degree possession of a weapon by a prohibited person, N.J.S.A. 2C:39-7b.
On December 22, 2011, defendant was sentenced to an extended term of fifteen years imprisonment on the aggravated assault charge, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court merged count two with count three, and imposed a concurrent seven-year prison term. A consecutive five-year sentence with no parole eligibility was imposed on the certain persons not to have weapons offense. Therefore, defendant was sentenced to an aggregate twenty-year term of imprisonment, with seventeen years and nine months of parole ineligibility.
Defendant appeals from the conviction and sentence. He presents the following points for our consideration:
I. THE ADMISSION OF EVIDENCE THAT DEFENDANT DID NOT COMPLY WITH A STATE "PROGRAM" AND LEFT NEW JERSEY IN VIOLATION OF THAT PROGRAM --PURPORTEDLY TO SHOW FLIGHT AND CONSCIOUSNESS OF GUILT -- WAS IRRELEVANT AND, IN ANY CASE, OVERLY PREJUDICIAL, MANDATING THE REVERSAL OF DEFENDANT'S CONVICTIONS.
II. THE ADMISSION OF A RECORDING OF A THREE-WAY CALL TO PETTIS AT [THE] JAIL DID NOT SUPPORT AN INFERENCE OF WITNESS TAMPERING, AND IN ANY CASE WAS OVERLY PREJUDICIAL, ESPECIALLY SINCE DEFENDANT DID NOT INITIATE THE CALL AND THE SUBJECT WITNESS HAD UNEQUIVOCALLY TESTIFIED AGAINST HIM.
III. REFERENCE TO DEFENDANT AS "A CRIP FROM AROUND THE AREA, " WAS HIGHLY PREJUDICIAL, MANDATING THAT COUNSEL'S REQUEST FOR A MISTRIAL SHOULD HAVE BEEN GRANTED.
IV. THE AGGREGATE 20-YEAR SENTENCE OF IMPRISONMENT FOR AGGRAVATED ASSAULT AND THE CERTAIN PERSONS WEAPONS CHARGE WAS EXCESSIVE.
For the reasons that follow, we affirm defendant's conviction. While we do not find defendant's sentence excessive, we remand for correction of a sentencing error with regard to merger of offenses.
We glean the following facts from the record. Defendant was charged with the May 22, 2009 shooting of Jarred Campfield. At trial, Campfield testified that he knew defendant because he was previously involved in a relationship with the mother of defendant's child, and that some "hostility" existed between the two men. According to Campfield, approximately five or six days before the shooting defendant had approached him on the street "and asked me about something that I allegedly said about him, " and stated "we're going to handle this right now." Campfield observed defendant reach into his pocket, and thought he was going for a weapon, but later determined it was a can of soda. Campfield proceeded to "beat him up" and "slammed him on his head a couple of times. Kicked him in his face." The incident occurred at the intersection of Van Dyke Avenue and Wright Place, in front of an apartment complex where defendant resided. Campfield testified that as he went to leave, defendant said "[d]on't come back to Wright Place, I got you."
Some five or six days later, as Campfield was traveling down Wright Place, he saw two people he knew from the neighborhood, "Twist" and "Rob, " and he asked Rob for a cigarette. As he turned to leave, someone approached him and said "what's up home boy." Campfield testified that the man reached into his waistband and pulled out a black handgun and pointed it at him from a distance of approximately ten or twelve feet. He described the man as a black male, approximately five feet, ten inches tall, weighing between 120 and 150 pounds. The man opened fire and shot Campfield seven times, causing him to fall to the ground. He managed to get up and heard the shooter say "I told you [I] was going to get you." The shooter then ran off towards Van Dyke Avenue and the apartment complex.
Campfield dialed 9-1-1 from his cell phone and numerous police officers arrived within minutes. He testified that the officers asked him questions about who the shooter was, and he was able to give them a brief description of the shooter, but was "delirious" and asked them to question him later. Campfield was taken by ambulance to the hospital where he remained for five or six days.
When shown the police report to refresh his recollection at trial, Campfield testified he really did not know who shot him, and that he did not provide the detectives with a name, despite the fact that the report indicated that at the scene he stated defendant had shot him.
On cross-examination, Campfield testified that he had been attacked a week before the shooting by a man named Solomon Castleberry. He stated that Castleberry lived across the street from where the shooting took place, but that he knew "for a fact, [the shooter] wasn't Solomon Castleberry." Campfield further testified that the same day he was attacked by Castleberry, he was involved in an altercation with a member of the "Bloods" gang, but that it "was cleared up very, very fast."
Robert VanAnglen, a mutual acquaintance of defendant and Campfield, testified that he witnessed the shooting, and identified defendant as the shooter. He stated that he heard defendant say "what's up, home boy" to Campfield before shooting him five to seven times.
Officer Thomas Hetzler and Sergeant Mark Pappas were among the first to respond to the shooting scene. Hetzler asked Campfield who the shooter was and Campfield responded "it was Jason, " and that "he was wearing a white t-shirt, blue jeans, and he had dreadlocks." Similarly, Pappas testified that Campfield said that a member of the Crips, named Jason, had shot him.
Defendant's probation officer, Cesar Leduc, was allowed to testify, over defense objection, that defendant was "a participant in [a] program operated by the State of New Jersey." Leduc indicated that pursuant to the terms of that program, defendant was required to report to him on a regular basis and was not permitted to leave the State without Leduc's permission. Leduc also testified that in 2010, he became aware that defendant left New Jersey without his permission, and was later located in the State of Illinois.
Shortly before trial was scheduled to commence, defendant was being held in the county jail with another inmate, Jomas Arrington. Arrington made a phone call to Darnell Waters, Campfield's cousin, and a few minutes later defendant joined in on the call. During this conversation, defendant stated "if you know where Ern['s] little brother at . . . I need you to tell him he cannot come at all, man. Like my life in his hands." At trial, VanAnglen testified that he had an older brother named "Ernest." Waters indicated to defendant during the call that he would "find him today. Don't worry about it." This conversation was recorded, and the State sought to introduce it at trial. The court initially ruled the recording inadmissible under N.J.R.E. 404(b) and 403. The trial judge then reversed his ruling the following day, and admitted the recording into evidence.
Defendant did not testify or call any witnesses. The jury found defendant not guilty of the attempted murder charge, but convicted him of the lesser-included second-degree aggravated assault and the weapons offenses. This appeal follows.
Defendant first argues that the trial court erred in allowing Leduc to testify as to defendant's participation in a "State run program, " and that defendant failed to report to Leduc on May 26, 2009, and had not been seen since. Additionally, defendant argues that it was improper for the jury to consider a violation of this program as additional evidence of flight to establish a "consciousness of guilt" in connection with the attempted murder charge. Defendant contends that this testimony was irrelevant under N.J.R.E. 401, and its prejudicial effect outweighed its probative value. We disagree.
We review a trial court's evidentiary rulings under an abuse of discretion standard. State v. McGuire, 419 N.J.Super. 88, 135 (App. Div.), certif. denied, 208 N.J. 335 (2011). A trial court's evidentiary rulings will not be disturbed on appeal absent a showing of a clear abuse of discretion, meaning, a clear error in judgment. State v. J.A.C., 210 N.J. 281, 295 (2012).
Here, the State sought to introduce this evidence because defense counsel intended to "ask questions" to establish that defendant "was born in Illinois, was originally from Illinois, and still has family in Illinois;" in short, to explain defendant's presence in Illinois after the shooting and refute any inference that he left New Jersey to escape prosecution. The trial court correctly ruled that the State could counter such evidence by demonstrating that defendant was not allowed to leave the State without permission.
Generally, evidence of an accused's conduct after the alleged offense was committed is admissible only if it is probative of guilt. See State v. Mann, 132 N.J. 410, 418 (1993). "Evidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." Ibid. The flight of a defendant must be distinguished from mere departure, as "'[m]ere departure, however, does not imply guilt.'" State v. Ingram, 196 N.J. 23, 46 (2008) (quoting State v. Long, 119 N.J. 439, 499 (1990)). "For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Mann, supra, 132 N.J. at 418-19.
Here, an arrest warrant was issued for defendant immediately after the shooting, defendant could not be located anywhere in the State of New Jersey for almost a year, and he was ultimately found in Illinois. This evidence supports the inference that defendant's conduct was a "flight" as opposed to a "mere departure." See Mann, supra, 132 N.J. at 418-19; N.J.R.E. 401. Leduc's testimony was clearly relevant to establish defendant's consciousness of guilt, and to rebut defendant's assertion that the reason he was in Illinois was not to evade prosecution, but instead to visit family.
Defendant further argues that admission of this evidence was unduly prejudicial. N.J.R.E. 403 provides that any relevant evidence may be "excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice . . . ." The "mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J.Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). In order to find an abuse of discretion, "the danger of undue prejudice must outweigh probative value so as to divert jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence." State v. Moore, 122 N.J. 420, 467 (1991).
Here, Leduc's testimony was sanitized so as to avoid any reference to his position as a probation officer, or defendant's probationary status. Additionally, the trial judge gave a limiting instruction, informing the jurors that there are various state-operated programs with various restrictions for employment, education, and housing purposes, and that participation in such programs is unconnected with illegal activity. The judge further instructed the jury not to draw any adverse inference from defendant's participation in the program. We find no abuse of discretion in the trial court's ruling here, as the probative value of Leduc's sanitized testimony outweighed the risk of undue prejudice to defendant.
Defendant next argues that the trial court erred in admitting into evidence the telephone call between himself, his fellow inmate Arrington, and Darnell Waters. He contends that the phone call was prejudicial and failed to satisfy the requirements of N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328 (1992) for the admission of evidence of other bad acts. Further, defendant contends that the recording itself was unduly prejudicial, as it was "laced with noxious irrelevant profanity and racial slurs." Again we disagree.
The State sought to use this evidence to demonstrate defendant's consciousness of guilt, by attempting to engage in witness tampering. The court conducted an analysis pursuant to N.J.R.E. 404(b) and Cofield, and initially determined that the probative value of the conversation was substantially outweighed by the prejudice defendant would suffer, and precluded its admission.
After further consideration, the court reversed its ruling the following day. The judge reasoned that on the recording defendant told Waters to "tell J-Bird he finally deciding to be a man." "J-Bird" is a nickname of Campfield, the victim. The judge considered the fact that Campfield's testimony at trial contradicted the statements he made to police immediately after he was shot. He concluded that an inference could be drawn that this was the "result of somebody having spoken to Mr. Campfield. Or of somebody having gotten to Mr. Campfield." The judge further found that the conversation was probative of two material issues, defendant's consciousness of guilt and Campfield's credibility. Applying the Cofield factors, the court concluded that the conversation was clear and convincing evidence of the crime of witness tampering by defendant, and that the probative value of the conversation was not substantially outweighed by any prejudice. The trial court admitted the recording into evidence and issued a limiting instruction to the jury that it was not to consider the fact that the phone call was made from the county jail in determining defendant's guilt.
N.J.R.E. 404(b) provides that except as otherwise provided by the rules, "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." A jury may thus not infer that a defendant committed the offense for which he is on trial merely because he has committed other bad acts in the past. See State v. Burden, 393 N.J.Super. 159, 169 (App. Div. 2007), certif. denied, 196 N.J. 344 (2008). Evidence of other bad acts, however, is admissible for other purposes, such as showing proof of motive, opportunity, intent, identity, or consciousness of guilt, when relevant to a material issue in dispute. N.J.R.E. 404(b); State v. Williams, 190 N.J. 114, 129 (2007).
In Cofield, the Court established a four-prong test for determining the admissibility of other crime evidence:
(1) The evidence of the other crime must be admissible as relevant to a material issue;
(2) It must be similar in kind and reasonably close in time to the offense charged;
(3) The evidence of the other crime must be clear and convincing; and
(4) The probative value of the evidence must not be outweighed by its apparent prejudice.
[Supra, 127 N.J. at 338.]
When the other bad acts are relevant to show consciousness of guilt, the second prong of this test will not apply. See Williams, supra, 190 N.J. at 131. Notably, our scope of review of a trial judge's determination of the admissibility of other bad acts evidence is deferential, and governed by the abuse of discretion standard. See State v. Marrero, 148 N.J. 469, 483-84 (1997).
Here, the trial court correctly applied the Cofield test, and did not abuse its discretion in admitting the recorded conversation in evidence. First, the recording was relevant to the issue of whether defendant committed the assault, and was probative of his consciousness of guilt in attempting to prevent Campfield and VanAnglen from testifying against him. See Burden, supra, 393 N.J.Super. at 172 (upholding admission of a recorded jail call which showed that Burden attempted to use a go-between to bribe the victim not to testify); Williams, supra, 190 N.J. at 129 (finding defendant's post-shooting conduct relevant as "classic consciousness of guilt evidence"). It is also relevant to the issue of Campfield's credibility because it would explain why his testimony at trial contradicted his statements following the shooting. Second, although a closer question, the evidence of defendant's attempted witness tampering was clear and convincing based on defendant's statements "tell [Campfield] he finally deciding to be a man, " and "I need you to tell [VanAnglen] he cannot come at all, man. Like my life is in his hands, " and Campfield's subsequent testimony at trial that contradicted his earlier statements to police. Finally, while the recording contains vulgar language and racial slurs, it is highly probative of defendant's guilt, and the potential prejudice does not outweigh its probative value.
Defendant next argues that Sgt. Pappas's testimony that Campfield told him the shooter was a Crip from around the area was extremely prejudicial and warranted a mistrial. He also contends that the trial judge's instruction to the jurors not to consider any references to gang membership was insufficient to alleviate any prejudice defendant suffered.
In response to the prosecutor's question as to what Campfield told him when he arrived on the scene, Pappas testified "[h]e said that he knew who shot him. An individual known as Jason. He is a Crip from around the area. And he lived somewhere in that area. He also said that he was wearing blue jeans, or dark-colored jeans, and his hair was braided that evening." After this testimony, defense counsel requested a sidebar conference and moved for a mistrial based on the reference to defendant being a member of the Crips. The judge denied the motion but offered to have defense counsel draft a curative instruction that he would read to the jury. Defense counsel drafted it, and requested that the judge read it during his charge to the jury at the close of the case. In his final charge, the trial judge read the curative instruction defendant drafted verbatim, as follows:
During the trial, you heard reference to various organizations and associations, including mention of certain street gangs, like the Crips and the Bloods. This is not a gang case. Any reference to these organizations or affiliations must play no role in your deliberations.
"A mistrial is an extraordinary remedy" that should be employed "[o]nly when there has been an obvious failure of justice . . . ." State v. Mance, 300 N.J.Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)). When "the court has an appropriate alternative course of action, " it should deny a request for a mistrial. Id. at 281 (citing Loyal, supra, 164 N.J. at 436-37).
"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citations omitted), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). We "should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Ibid. We will not disturb a trial judge's ruling on a motion for a mistrial unless it presents an abuse of discretion resulting in a "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969).
We agree that the officer's testimony was inappropriate. While reference to gang membership alone is not evidence of criminal activity, "it is at the very least strongly suggestive of such activity." State v. Goodman, 415 N.J.Super. 210, 227 (App. Div. 2010). Here, however, the prosecutor did not seek to elicit testimony that defendant was involved in a gang. Rather, Pappas made one passing reference to it when recounting what the victim told him. Notably, defense counsel also made reference to gang membership when he elicited testimony from Campfield that he was involved in an altercation with an alleged member of the "Bloods." The trial judge gave the jury a curative instruction, in the form proposed by defense counsel. We find no basis to depart from our usual presumption that the jury followed the judge's instruction, State v. Loftin, 146 N.J. 295, 390 (1996), and note that the jury acquitted defendant of the more serious attempted murder charge. Under these circumstances, the fleeting, isolated remark that defendant was "a Crip from around the area" cannot be considered so prejudicial as to merit a new trial.
Finally, defendant challenges his sentence as excessive and claims that the court erred in imposing a consecutive sentence on the possession of a weapon by a prohibited person charge. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). When the trial court has applied correct legal principles and sentenced in accordance with the guidelines, we should not overturn the sentence unless it is so clearly unreasonable as to shock the judicial conscience. Id. at 501 (citing State v. Roth, 95 N.J. 334, 363-65 (1984)). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obligated to affirm. State v. Cassady, 198 N.J. 165, 180-81 (2009).
We are satisfied the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines. Additionally, the judge's reasoning for imposing a consecutive sentence was appropriate and in accord with the principles articulated 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). Accordingly, we discern no basis to second-guess the sentence.
We note, however, the court merged the conviction for unlawful possession of a weapon, N.J.S.A. 2C:39-5b, with the conviction for possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The unlawful possession of a weapon offense is not a lesser included offense under N.J.S.A. 2C:1-8(d), and should have instead been merged with the conviction for second-degree aggravated assault. See State v. O'Neill, 193 N.J. 148, 163 n.8 (2007); State v. Diaz, 144 N.J. 628, 636 (1996); see also State v. Tate, ___ N.J. ___, ___ (2013) (slip op. at 20) (holding that conviction for unlawful possession of a weapon must merge with a conviction for substantive offense where there was no other unlawful purpose for possessing the weapon). Thus, we remand to the sentencing court to amend the judgment of conviction to reflect the appropriate mergers. This will not change defendant's aggregate sentence, because a concurrent term was imposed on the conviction for possession of a weapon for an unlawful purpose
Affirmed in part remanded in part.