NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5389-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT BELL, a/k/a SHABAZZ HAKIM, BELL JAY and SHABAZZ H,
Defendant-Appellant. _______________________________
Submitted May 15, 2018 – Decided August 3, 2018
Before Judges Yannotti, Carroll, and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-01-0004.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sarah D. Brigham, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM Defendant Robert Bell appeals his June 20, 2016 judgment of
conviction and sentence for the first-degree attempted murder of
Joseph Battle, and related charges. We affirm.
I.
The following facts are derived from the record. On July 26,
2012, defendant and the victim were at a party at a house in
Franklinville. Defendant's girlfriend, Dorothea Withers, who is
also the victim's sister, was present. Other members of the
victim's family were also party guests: Denise Battle and Joann
Rankin, two of his sisters; Daniesha Battle, his niece; and
Jonathan Battle, his nephew. Brooke Hansen, in whom the victim
had a romantic interest, was also present.
Dorothea1 started a fight with Brooke over a debt that Brooke
owed defendant. At the time, the victim and Brooke were sitting
in Brooke's car. After a stick or bat broke the car window, Brooke
asked the victim to exit the vehicle. She then left the party.
About forty-five minutes later, defendant and the victim
engaged in a verbal dispute related to the previous incident. The
argument escalated into a physical altercation between the two
men, who engaged in fisticuffs, and fell to the ground wrestling.
1 Because the victim and some witnesses share the same last name we refer to the parties by their first names. No disrespect is intended.
2 A-5389-15T2 Joann, Denise, and Jonathan broke up the fight, physically
separating the men. Jonathan pulled the victim off defendant and
told him to "leave that man alone and go home." He also pushed
defendant away from the victim and told him to "leave that dumb
shit alone." Once the men were separated, Denise told the victim
to go into the house, and defendant to go in a different direction.
Although the two were still exchanging words, the victim
began walking away from defendant. As the victim was about to
enter the house, defendant said "I'm going to shoot you," and
reached into his pocket as if he were retrieving a gun. Denise
testified that at that time she heard other guests at the party
say, "he's about to shoot."
The gun was not fully visible because it was wrapped in a
bag, rag, or sock. Denise, however, saw its wooden handle. She
also saw defendant "fiddle" underneath the material hiding the
weapon. Dorothea testified that she saw defendant with a sock,
which she told police might have contained a gun. She had
previously seen defendant in possession of a handgun.
Defendant pointed the gun at the victim's stomach and pulled
the trigger. The gun clicked, but no shot fired. Defendant pulled
the trigger a second time, shooting the victim in the right leg,
as the victim was in the doorway trying to enter the house.
3 A-5389-15T2 After the shooting, defendant told Dorothea to "come on" and
"get [him] the hell out of there." Dorothea and defendant left
in her car with Jonathan running after them.
At about that time, Sergeant James Reilly of the Franklin
Township Police Department was arriving at a home near the location
of the party on an unrelated call. As he arrived, the homeowner
told Reilly he had heard gunshots. The officer then received a
radio dispatch of a reported gunshot victim at the party. Reilly
observed Dorothea's car speed past him, but headed to the party
to provide aid to the victim. Before the officer reached the
scene of the shooting, Jonathan approached his patrol car and said
that the shooter was in the car that had passed the officer.
Reilly pursued Dorothea's vehicle and stopped it nearby.
Defendant exited the vehicle and ran into the woods before he
could be detained by the officer. His flight was recorded on the
patrol vehicle's video recorder. Police were unable to apprehend
defendant that evening.
The victim was treated by medical personnel and transported
to a local hospital. Detective John Petroski of the Gloucester
County Prosecutor's Office met with the victim at the hospital
approximately two hours and forty-five minutes after the shooting.
The victim, who was in a bed being treated by medical personnel,
was largely uncooperative, stating that he wanted to "take care"
4 A-5389-15T2 of the shooter himself. He did, however, tell the officer that
the shooter was his "brother-in-law" with whom he lives. The
detective made an audio recording of the victim's interview.
After interviewing the victim, Petroski went to police
headquarters to interview witnesses. Denise, Joann, Jonathan,
Daniesha, and Dorothea all identified defendant as the shooter.
With information provided by these witnesses, police traced
a cellphone believed to be in defendant's possession to a motel
in the area of the shooting. Although defendant was not present
when an investigating officer arrived, the officer testified that
he reviewed a motel surveillance video on which he saw a man enter
the motel lobby and secure a room key. The officer testified that
the man in the video resembled a composite sketch of defendant
given to him by another officer.
Five days after the shooting, defendant was apprehended at a
hotel in Philadelphia. At the time of his arrest, defendant had
scrapes and marks, particularly on his upper body, consistent with
having recently run through brush or sticker bushes.
A grand jury indicted defendant for: first-degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1); second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-
4(a); second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b); second-degree aggravated assault causing serious
5 A-5389-15T2 bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated
assault causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-
1(b)(2); fourth-degree aggravated assault by pointing a firearm,
N.J.S.A. 2C:12-1(b)(4); and second-degree certain persons not to
have weapons, N.J.S.A. 2C:39-7(b)(1).
At trial, five eyewitnesses identified defendant as the
shooter. The victim, on the other hand, testified that although
he and defendant had a physical altercation at the party, they
went their separate ways after the fight broke up. He testified
that he did not know who shot him, and denied having told the
detectives that his brother-in-law shot him.
Defendant did not testify. In summation, his counsel argued
that defendant did not shoot the victim, and that another,
unidentified guest at the party fired the shot, and left before
the police arrived. Counsel claimed that defendant coincidentally
left the party with Dorothea just after the shooting.
After a ten-day trial, a jury convicted defendant of all
charges. On May 2, 2016, the State moved for an extended term
based on defendant's status as a persistent offender under N.J.S.A.
2C:44-3(a). The trial court granted the motion, and sentenced
defendant to an extended term of thirty years imprisonment, with
an eighty-five percent period of parole ineligibility under the
No Early Release Act, N.J.S.A. 2C:43-7.2, for first-degree
6 A-5389-15T2 attempted murder. This sentence is to run concurrent with a term
of ten years imprisonment, with a five-year period of parole
ineligibility for second-degree unlawful possession of a firearm.
The court imposed a consecutive ten-year term of imprisonment,
with a five-year period of parole ineligibility on the certain-
persons conviction. The remaining counts were merged into the
attempted murder conviction. Defendant, therefore, received an
aggregate term of forty years of imprisonment, with a parole
ineligibility period of thirty years and six months.
This appeal followed. Before us, defendant, in a brief filed
by counsel, raises the following points:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CHARGE THE JURY ON THE LESSER- INCLUDED OFFENSE OF ATTEMPTED PASSION/ PROVOCATION MANSLAUGHTER. (NOT RAISED BELOW).
POINT II
WHEN ISSUING THE JURY CHARGE FOR POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE, THE COURT REFUSED TO PROVIDE THE JURY WITH THE PORTION OF THE MODEL CHARGE EXPLAINING THE DEFENSE, MERELY BECAUSE THE DEFENDANT DID NOT TESTIFY.
POINT III
THE STATE IMPROPERLY INTRODUCED THE VICTIM'S STATEMENT ON REDIRECT EXAMINATION.
7 A-5389-15T2 POINT IV
THE ADMISSION OF JONATHAN'S STATEMENT PURSUANT TO N.J.R.E. 803(c)(5) VIOLATED ROBERT'S CONFRONTATION CLAUSE RIGHTS.
POINT V
WHEN ISSUING INSTRUCTIONS AT THE CERTAIN PERSONS TRIAL, THE TRIAL COURT REPEATEDLY REFERENCED THE UNSANITIZED DETAILS OF ROBERT'S PRIOR CONVICTIONS, THEREBY DEPRIVING HIM OF A FAIR TRIAL. (PARTIALLY RAISED BELOW).
POINT VI
THIS COURT SHOULD REMAND THE MATTER FOR RESENTENCING BECAUSE THE SENTENCING COURT ACCORDED UNDUE WEIGHT TO ROBERT'S RECORD, ERRONEOUSLY IMPOSED CONSECUTIVE SENTENCES ON THE ATTEMPTED MURDER AND CERTAIN PERSONS OFFENSES, AND IMPROPERLY CONSIDERED ROBERT'S REFUSAL TO ACKNOWLEDGE GUILT.
In a supplemental pro se brief, defendant raises the following
arguments:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CHARGE THE JURY ON THE LESSER- INCLUDED OFFENSE OF ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER, THIS DEPRIVED APPELLANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART I, PARAS. I, 10.
8 A-5389-15T2 POINT II
WHEN ISSUING THE JURY CHARGE FOR POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE, THE TRIAL COURT REFUSED TO PROVIDE THE JURY WITH THE PORTION OF THE MODEL CHARGE EXPLAINING THE DEFENSE, MERELY BECAUSE THE DEFENDANT DID NOT TESTIFY. THIS VIOLATED APPELLANT'S RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, V, XVI; N.J. CONST. ART I, ¶ I, 9, 10.
THE TRIAL COURT FAILED TO GIVE THE JURY INSTRUCTION THAT INTOXICATION IS A DEFENSE TO ALL OF THE COUNTS IN THE INDICTMENT, THIS DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL, REQUIRING REVERSAL. (NOT RAISED BELOW).
POINT IV
THE LAY OPINION TESTIMONY OF LAW-ENFORCEMENT WITNESSES ABOUT WHAT THEY BELIEVED THEY SAW ON THE SURVEILLANCE VIDEO [DEPRIVED] DEFENDANT OF A FAIR TRIAL.[2]
THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT-PETITIONER[‘S] MOTION FOR A NEW TRIAL ON THE GROUNDS THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE PROSECUTOR'S OFFICE VIOLATED ITS POST- INDICTMENT DISCOVERY OBLIGATIONS UNDER RULE 3:13-3, WHEN ITS INVESTIGATOR DESTROYED HIS INVESTIGATION NOTES. (NOT RAISED BELOW).
2 Brackets in original.
9 A-5389-15T2 POINT VII
THE TRIAL COURT ABUSED HIS DISCRETION BY USING FACTS TO SENTENCE DEFENDANT THAT WERE NEVER PRESENTED TO THE JURY.
POINT VIII
THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.
Having considered these arguments in light of the record and
applicable legal standards, we affirm.
II.
We address defendant's arguments in turn.
1. Jury Instruction on Attempted Passion/Provocation Manslaughter.
Defendant argues that the evidence presented at trial clearly
indicated that he could have been convicted of attempted
passion/provocation manslaughter, which is a lesser-included
offense to attempted murder. He argues that the trial court was
obligated to sua sponte instruct the jury on this lesser-included
offense despite defendant's failure to request the instruction.
We disagree.
It is well-settled that “[a]ccurate and understandable jury
instructions in criminal cases are essential to a defendant's
right to a fair trial.” State v. Concepcion, 111 N.J. 373, 379
(1988). However, "[i]f the defendant does not object to the charge
at the time it is given, there is a presumption that the charge
10 A-5389-15T2 was not error and was unlikely to prejudice the defendant's case."
State v. Singleton, 211 N.J. 157, 182 (2012).
Therefore, "the failure to object to a jury instruction
requires review under the plain error standard." State v.
Wakefield, 190 N.J. 397, 473 (2007).
As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."
[State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).]
The mere possibility of an unjust result is not enough to warrant
reversal of a conviction. State v. Jordon, 147 N.J. 409, 422
(1997). The error "must be evaluated in light of the overall
strength of the State's case." State v. Walker, 203 N.J. 73, 90
(2010) (quoting Chapland, 187 N.J. at 289).
The trial court's decision to charge on a lesser-included
offense is governed by N.J.S.A. 2C:1-8(e). Under the statute, the
trial court cannot charge a jury on "an included offense unless
there is a rational basis for a verdict convicting the defendant
of the included offense." N.J.S.A. 2C:1-8(e). "[A] trial court
has an independent obligation to instruct on lesser-included
11 A-5389-15T2 charges when the facts adduced at trial clearly indicate that a
jury could convict on the lesser while acquitting on the greater
offense." State v. Jenkins, 178 N.J. 347, 361 (2004) (citing
State v. Garron, 177 N.J. 147, 180 (2003)). However, "when the
defendant fails to ask for a charge on lesser-included offenses,
the court is not obliged to sift meticulously through the record
in search of any combination of facts supporting a lesser-included
charge." State v. Denofa, 187 N.J. 24, 42 (2006). "[T]he need
for the charge must 'jump off' the proverbial page." State v.
R.T., 205 N.J. 493, 510 (2011).
"Passion/provocation manslaughter is an intentional homicide
committed under extenuating circumstances that mitigate the
murder." State v. Robinson, 136 N.J. 476, 481 (1994). A criminal
homicide may be considered manslaughter when "[a] homicide which
would otherwise be murder under section 2C:11-3 is committed in
the heat of passion resulting from a reasonable provocation."
N.J.S.A. 2C:11-4(b)(2). "Thus, passion/provocation manslaughter
is considered a lesser-included offense of murder: the offense
contains all the elements of murder except that the presence of
reasonable provocation, coupled with defendant's impassioned
actions, establish a lesser culpability." Robinson, 136 N.J. at
482; see N.J.S.A. 2C:1-8(d)(3). N.J.S.A. 2C:5-1 makes criminal
12 A-5389-15T2 all attempts to commit other crimes defined in the Code, including
passion/provocation manslaughter. Robinson, 136 N.J. at 486.
In our jurisprudence, attempted passion/provocation manslaughter is comprised of four elements: [1] the provocation must be adequate; [2] the defendant must not have had time to cool off between the provocation and the slaying; [3] the provocation must have actually impassioned the defendant; and [4] the defendant must not have actually cooled off before the slaying.
[State v. Funderburg, 225 N.J. 66, 80 (2016) (citing State v. Mauricio, 117 N.J. 402, 411 (1990)).]
The first two criteria are objective, and the second two are
subjective. Mauricio, 117 N.J. at 411.
"In determining whether to instruct a jury on passion/
provocation manslaughter, the trial judge must view the evidence
in the light most favorable to defendant." State v. Viera, 346
N.J. Super. 198, 212 (App. Div. 2001). As the Supreme Court
explained,
a trial court in charging a jury sua sponte must find first that the two objective elements of passion/provocation manslaughter are clearly indicated by the evidence. If they are, the two subjective elements should "almost always be left for the jury." That standard is equally applicable to a trial court's decision to charge a jury sua sponte on attempted passion/provocation manslaughter.
[Robinson, 136 N.J. at 491.]
13 A-5389-15T2 The two objective elements are whether the provocation was
adequate and whether there was time for the defendant to cool off
before the slaying. The measure of adequate provocation is whether
"loss of self-control is a reasonable reaction." Mauricio, 117
N.J. at 412. "The 'provocation must be sufficient to arouse the
passions of an ordinary [person] beyond the power of his [or her]
control.'" Robinson, 136 N.J. at 491 (quoting Mauricio, 117 N.J.
at 412 (alterations in original) (quotations omitted)). "The
generally accepted rule is that words alone, no matter how
offensive or insulting, do not constitute adequate provocation to
reduce murder to manslaughter." Funderburg, 225 N.J. at 80
(quoting State v. Crisantos, 102 N.J 265, 274 (1986)). "[M]utual
combat under certain circumstances can constitute adequate
provocation to reduce murder to manslaughter, [but] the
provocation must be proportionate to the manner of retaliation
. . . ." State v. Darrian, 255 N.J. Super. 435, 449 (App. Div.
1992).
As for the cooling-off period, the Supreme Court has said "it
is well-nigh impossible to set specific guidelines in temporal
terms," therefore "[t]rial courts are . . . remitted to the sense
of the situation as disclosed by the facts." Mauricio, 117 N.J.
at 413. In Mauricio, the Court found that a half hour was not,
as a matter of law, a sufficiently long enough period of time such
14 A-5389-15T2 that "no jury could rationally determine that a reasonable person's
inflamed passions might not have cooled sufficiently to permit the
return of self-control." Id. at 415.
Here, the evidence demonstrated that defendant and the victim
were engaged in an argument, which included physical violence,
before the shooting. However, several witnesses testified that
the physical altercation had ended, and defendant and the victim
had been separated before defendant shot the victim. In addition,
at the time of the shooting, the victim was retreating from the
confrontation, was unarmed, and posing no physical threat to
defendant. Although defendant and the victim were engaged in a
verbal exchange prior to the shooting, as noted above, words alone
are never sufficient to justify a passion/provocation manslaughter
instruction. These facts certainly do not jump off the page
suggesting sufficient provocation to justify a sua sponte charge.
Additionally, the Supreme Court has recognized that attempted
passion/provocation manslaughter will "remain unfamiliar, because
there are few instances in which a defendant charged with attempted
homicide will want to raise before a jury the argument that he or
she actually intended to kill." Funderburg, 225 N.J. at 80
(quoting Robinson, 136 N.J at 493). Here, a jury charge on
attempted passion/provocation manslaughter, which would require
the jury to find that defendant intended to kill the victim, would
15 A-5389-15T2 have undermined defendant's theory that he was not the shooter.
A sua sponte instruction on a charge that contradicts the
defendant's theory of the case would have compounded the defense
he advanced to the jury, militating against a conclusion of plain
error. R.T., 205 N.J. at 513-14 (Long, J., concurring).
2. Jury Instruction on Possession of a Firearm for an Unlawful Purpose.
Defendant argues that the court erred in its jury charge on
the count alleging possession of a firearm for an unlawful purpose.
Defendant argues that the court should have instructed the jury
as to the affirmative defense that defendant contended that he
never was in possession of a firearm.
The Model Jury Charge for possession of a firearm with a
unlawful purpose requires the court to describe the four elements
of the crime: (1) that there was a firearm; (2) that defendant
possessed the firearm; (3) that defendant possessed the firearm
with the purpose to use it against the person or property of
another; and (4) that defendant's purpose was to use the firearm
unlawfully. Model Jury Charges (Criminal), "Possession Of A
Firearm With A Purpose To Use It Unlawfully Against The Person Or
Property Of Another (N.J.S.A. 2C:39-4)," (rev. June 16, 2003).
The court must also instruct the jury that it is the State's burden
16 A-5389-15T2 to prove each element beyond a reasonable doubt, and explain what
is necessary to meet that burden. Ibid.
The instruction must include the alleged unlawful purpose
because "[a] jury is not qualified to say without guidance which
purposes for possessing a gun are unlawful under N.J.S.A. 2C:39-
4(a) and which are not." State v. Jenkins, 234 N.J. Super 311,
316 (App. Div. 1989). The Model Jury Charge provides a space to
state defendant's purported lawful purpose, if one is offered.
Here, at the jury-charge conference, the trial court sua
sponte raised with counsel the need to include in the instructions
an affirmative defense that defendant never was in possession of
a weapon. The State, although not objecting to including the
charge, noted that defendant did not testify and, therefore, did
not deny possessing a weapon. The State argued that including the
affirmative defense in the jury instructions would, in effect,
permit defendant to testify without being subject to cross-
examination. The trial court decided, without objection from
defendant, not to include the affirmative defense instruction.
The court thereafter charged the jury with the model
instructions. The charge, therefore, is presumptively proper.
State v. R.B., 183 N.J. 308, 325 (2005). Jurors were instructed
that possession of a weapon was an essential element of the charge,
and that the State had the burden of proving that element, and all
17 A-5389-15T2 other elements, beyond a reasonable doubt. The instructions had
all "essential and fundamental issues and . . . substantially
material points," State v. Green, 86 N.J. 281, 290 (1981),
providing the jury with "a comprehensible explanation of the
questions that [they] must determine . . . ." Id. 287.
We review the court's jury instructions for plain error. We
see nothing in the instructions clearly capable of causing an
unjust result. The court clearly and repeatedly instructed the
jury that in order to convict defendant of the charge they must
find beyond a reasonable doubt that he possessed a weapon for an
unlawful purpose. Defendant's counsel had an opportunity to cross-
examine the witnesses who testified that defendant was in
possession of a gun, and to argue in summation that the State had
not met its burden of proving the elements of the charge, including
defendant's possession of the gun, beyond a reasonable doubt.
3. Jury Charge on Intoxication Defense.
In his pro se brief, defendant argues that the trial court
should have sua sponte instructed the jury on voluntary
intoxication as a defense because several witnesses testified that
defendant was drinking alcohol before the shooting. We disagree.
A conviction of murder requires proof that the defendant
acted purposely or knowingly. N.J.S.A. 2C:11-3(a)(1), (2). "To
act purposely requires a conscious objective to engage in conduct
18 A-5389-15T2 or to cause the result of conduct, while to act knowingly requires
awareness of the nature of the conduct involved." State v. Sette,
259 N.J. Super. 156, 170 (App. Div. 1992); see N.J.S.A. 2C:2-
2b(1), (2). "[W]hen the requisite culpability for a crime is that
the person act 'purposely' or 'knowingly,' evidence of voluntary
intoxication is admissible to disprove that requisite mental
state.” State v. Cameron, 104 N.J. 42, 53 (1986). Voluntary
intoxication can reduce the offense of purposeful or knowing murder
to manslaughter or aggravated manslaughter. State v. Warren, 104
N.J. 571, 577 (1986).
In order for intoxication to diminish "the capacity to act
purposely or knowingly, the intoxication must be of an extremely
high level; it must have caused a 'prostration of faculties' in
the defendant." Sette, 259 N.J. Super. at 170 (quoting Cameron,
104 N.J. at 54). "[A] jury issue arises only if there exists a
rational basis for the conclusion that defendant's" intoxication
has reached a level where "he or she was incapable of forming an
intent to commit the crime." Mauricio, 117 N.J. at 418-19.
Because defendant did not request an intoxication charge, we
review his argument on this point for plain error. A review of
the record reveals a lack of evidence that defendant was incapable
of acting with the requisite intent. While several witnesses
testified that defendant was seen drinking alcohol at the party,
19 A-5389-15T2 no one testified that his faculties were so prostrated that he was
incapable of forming a knowing or purposeful intent to kill the
victim. Simply put, there was no evidence on which the jury could
reasonably have concluded that defendant established a voluntary-
intoxication defense to the attempted murder charge.
4. Admission of the Victim's Redacted Recorded Statement to Police.
Defendant challenges the trial court's admission under
N.J.R.E. 803 of the audio recording of the victim's statement to
police at the hospital. The victim testified that he "probably"
was given morphine prior to the hospital interview, but that he
remained coherent, and was not drunk when talking to detectives.
He acknowledged referring to defendant as his brother-in-law, but
denied having told detectives that his brother-in-law shot him.
The State moved to play the audio recording of the victim's
statement to police at the hospital. Defendant objected, arguing
that the statement was not reliable because the victim was
intoxicated and medicated when he made the statement.
N.J.R.E. 803(a) provides, in relevant part,
The following statements are not excluded by the hearsay rule:
PRIOR STATEMENTS OF WITNESSES. A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:
20 A-5389-15T2 (1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability . . .; or
. . . .
(3) is a prior identification of a person made after perceiving that person if made in circumstances precluding unfairness or unreliability.
At a hearing to determine the reliability of the statement,
Detective Petroski testified that during the interview it appeared
that the victim had been drinking and emitted an odor of alcohol.
The detective, however, believed that the alcohol was not affecting
the victim's coherency, that he was responsive to questions, and
appeared to be answering truthfully. Petroski testified that the
victim's speech was a little slurred and his eyes were a little
glassy. He noted that the victim was focused on his questions,
was wide awake, never "faded off," and appeared to be sobering up.
The detective’s observations were based on his professional
experience, including conducting drunk-driving stops, training,
and interactions with intoxicated people. Finally, Petroski
testified that he ended the interview because he thought the victim
21 A-5389-15T2 was not being completely forthright, given his desire to exact
revenge on the shooter.3
The trial court found that a redacted version of the victim's
recorded police statement would be admissible under both N.J.R.E.
803(a)(1) and (a)(3). The court found that the victim's level of
intoxication and medical treatment did not make him incoherent or
affect the reliability of his statement to Detective Petroski. In
addition, the court found that the victim intentionally did not
identify defendant by name because he wanted to exact revenge
without involving the police, and that he obstructed the interview
in order to encourage the detectives to leave. The court found
the victim's behavior was indicative of a control of his faculties.
"Trial judges are entrusted with broad discretion in making
evidence rulings." State v. Harris, 209 N.J. 431, 439 (2012).
"Trial court evidentiary determinations are subject to limited
appellate scrutiny, as they are reviewed under the abuse of
discretion standard." State v. Buda, 195 N.J. 278, 294 (2008).
3 A physician who treated the victim testified that the victim did not appear intoxicated because he did not slur his speech, and answered questions appropriately. The physician also testified that a test indicated that the victim's blood alcohol level was 2.5 times the legal limit for drunk driving. He explained, however, that the test results could have been affected by an alcohol wipe of the victim's arm prior to the injection for the test or prior to the insertion of an IV tube. He also testified that he gave the victim Dilaudid, a pain relief medication. The physician testified that Dilaudid does not affect coherency.
22 A-5389-15T2 We do not substitute our judgment for that of the trial court,
unless "the trial court's ruling 'was so wide of the mark that a
manifest denial of justice resulted.'" State v. Marrero, 148 N.J.
469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).
N.J.R.E. 803(a)(1) is designed "to limit substantive
admissibility of prior inconsistent statements . . . to those
statements given in a form and under circumstances importing
special reliability." State v. Gross, 121 N.J. 1, 9 (1990)
(citations omitted). "Such statements must pass the double hurdle
of a . . . hearing on admissibility and in-court cross-examination
prior to a finding on sufficiency." State v. Mancine, 124 N.J.
232, 248 (1991). "The determination of the reliability of pretrial
statements must take into account all relevant circumstances."
State v. Michaels, 136 N.J. 299, 317 (1994). In Gross, the Court
detailed the range of factors that might bear on the reliability
of a pretrial statement, including the person or persons to whom
the statement was made, the manner and form of interrogation,
physical and mental condition of the declarant, the use of
inducements, threats or bribes, and the inherent believability of
the statement. 121 N.J. at 10.
At a reliability hearing, "the court should be convinced by
a preponderance of the evidence that the evidence is sufficiently
reliable for presentation to the jury . . . ." State v. Brown,
23 A-5389-15T2 138 N.J. 481, 539 (1994). Additionally, “when a witness testifies
at trial inconsistent with a signed or sound-recorded statement,
admissible under N.J.R.E. 803(a)(1), the Confrontation Clause is
not offended by the reading or playing of the out-of-court
statement to the jury provided that the defendant has the
opportunity to cross-examine the witness.” State v. Cabbell, 207
N.J. 311, 336 (2011).
We cannot say that the trial court abused its discretion when
admitting the victim's recorded prior inconsistent statement
identifying the shooter. The record contains substantial,
credible evidence supporting the trial court's finding that the
victim was sufficiently sober, and the circumstances of his
interview sufficiently trustworthy, to allow for admission of the
audio recording of his statement to police. Moreover, the victim
was given an opportunity during his testimony to explain or disavow
his prior statement, and defendant had the opportunity to cross-
examine the witness, satisfying N.J.R.E. 613(b).
Defendant also argues that the victim’s statement could not
be deemed a prior identification because he did not identify
defendant with specificity. Defendant points out that the victim
calls each of his sisters' spouses or boyfriends his "brothers-
in-law." Thus, according to defendant, the victim's statement
could be interpreted to identify several people as the shooter.
24 A-5389-15T2 The Supreme Court has stated that "[r]eliability is the
linchpin in determining the admissibility of identification
testimony." State v. Madison, 109 N.J. 223, 232 (1988) (quoting
Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). As was the case
with the victim's prior inconsistent statement, the circumstances
surrounding the victim's identification of his assailant support
the trial court's finding of reliability.
An eyewitness need not know or provide the name of an
assailant to make a reliable identification. State v. Swed, 255
N.J. Super. 228, 247 (App. Div. 1992) (holding that testimony that
defendant resembles a person observed by the witness, is of the
same size or general appearance, or has physical features close
to accused is sufficient to constitute an identification). Here,
the victim's recorded identification of defendant, one of several
people the victim called his "brother-in-law," was entered after
several eyewitnesses identified defendant as the shooter,
corroborating the reliability of the victim's recorded
identification. The defendant had an opportunity to cross-examine
the victim and argue to the jury that the recorded identification
was ambiguous and sufficient to create a reasonable doubt.
25 A-5389-15T2 5. Admission of Jonathan's Statement to Police.
Defendant challenges the trial court's decision to permit a
police report containing a statement Jonathan, the victim's
nephew, made to police shortly after the shooting, to be read to
the jury. He argues that admission of the statement violated his
right to confrontation under the federal and State Constitutions.
At trial, Jonathan testified that while he could identify
defendant, he could not remember what he witnessed on July 26,
2012, because of a medical condition. His review of a police
report that included the statement he gave to detectives after the
shooting did not refresh his memory. He testified that he could
not even recall going to the police station, or being interviewed
by detectives.
Outside the presence of the jury, Jonathan testified that he
receives government benefits for a recognized disability that
affects his reading comprehension and long-term memory. The trial
court found Jonathan’s testimony to be credible, and determined
that he genuinely had no recollection of the events of the night
in question. The judge, over defendant's objection, found that
Jonathan’s statement to police, recorded four to six hours after
the shooting when the facts, based on his personal observations,
were fresh in his mind, was admissible under N.J.R.E. 803(c)(5).
26 A-5389-15T2 After Jonathan’s statement was read to the jury, he was
subject to cross-examination. Defendant's counsel's questions
emphasized that Jonathan had a medical condition that affected his
long-term memory, and that he did not remember anyone being shot
on July 26, 2012, or any other details of that night's events, or
the interview with detectives in the hours after the shooting.
Both the Sixth Amendment to the United States Constitution
and Article I, Paragraph 10 of the New Jersey Constitution provide
that in a criminal trial the accused has the right "to be
confronted with the witnesses against him." U.S. Const. amend.
VI; N.J. Const. art. I, ¶ 10. The Confrontation Clauses prohibit
the use of a witness's out-of-court testimonial hearsay statement
as a substitute for in-court testimony when a defendant has not
been given the opportunity to cross-examine the witness. Cabbell,
207 N.J. at 329; California v. Green, 399 U.S. 149, 158 (1970).
The Sixth Amendment "'places no constraints at all on the use
of [a witness's] prior testimonial statements,' provided that 'the
[witness] appears for cross-examination at trial.'" State v.
Nyhammer, 197 N.J. 383, 412 (2009) (alterations in original)
(quoting Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)). The
right to confront witnesses "does not assure that cross-examination
will be successful." Cabbell, 207 N.J. at 337 (holding that
although a witness's feigned lack of recollection may sharply limit
27 A-5389-15T2 or nullify the value of cross-examination those limitations do not
rise to the level of violating a defendant's right to
confrontation). "It is sufficient that the defendant has the
opportunity to bring out such matters as the witness's bias, his
lack of care and attentiveness, his poor eyesight, and even . . .
the very fact that he has a bad memory." United States v. Owens,
484 U.S. 554, 559 (1988).
N.J.R.E. 803(c)(5), entitled "recorded recollection," allows
for the admission, despite the hearsay rule, of a
statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.
The trial court's determination that Jonathan genuinely could
not recall the events of July 26, 2012, is well supported by the
record. It is undisputed that Jonathan has a medical condition,
28 A-5389-15T2 recognized by the federal government as a disability, that affects
his long-term memory. The trial court, having had an opportunity
to observe Jonathan and measure his credibility, determined that
he sincerely could not recall the shooting, or his subsequent
interview by detectives at the police station. The court's
determination that Jonathan's statement to police could be read to
the jury pursuant to N.J.R.E. 803(c)(5) was sound.
In addition, defendant had the opportunity to cross-examine
Jonathan. Defendant's counsel explored his inability to recall
what he witnessed on July 26, 2012, or the circumstances of his
interview by detectives after the shooting. Those areas of inquiry
provided defendant with a basis to challenge the reliability of
Jonathan's identification of defendant as the shooter, and allowed
the jury to weigh the value of Jonathan's statement. Defendant
suffered no constitutional deprivation.
6. Sanitization of Defendant's Prior Convictions at the Certain-Persons Trial.
Defendant argues that the trial court erred by not sanitizing
his prior felony convictions at the bifurcated trial on the
certain-persons charge. We disagree.
Under N.J.S.A. 2C:39-7(b)(1), a person who has previously been
convicted of a specified offense who purchases, owns, possesses,
or controls a weapon, has committed a second-degree offense. In
29 A-5389-15T2 order to convict a defendant of this offense, the State must prove
beyond a reasonable doubt a prior conviction of at least one
statutorily defined predicate offense. Admission of evidence of a
conviction of a prior offense creates a potential for prejudice.
Where a defendant stipulates to having been convicted of a
predicate offense, "[t]he most the jury needs to know is that the
conviction admitted by the defendant falls within the class of
crimes that . . . bar a convict from possessing a gun . . . ."
State v. Brown, 180 N.J. 572, 584 (2004) (quoting Old Chief v.
United States, 519 U.S. 172, 190-91 (1997)). However, as the
Supreme Court recently explained,
[w]hen a defendant declines to stipulate to a predicate offense, the State is put to its proofs. The trial court's role in such cases is to take steps to "sanitize" the State's evidence to avoid jury prejudice while the State attempts to prove the elements of the certain persons statute to that defendant.
[State v. Bailey, 231 N.J. 474, 477 (2018).]
Before the holding in Bailey, the controlling practice was
that in the absence of a stipulation, the trial court would limit
the proof to the date and the degree of the predicate offense.
Brown, 180 N.J. at 585; Model Jury Charges (Criminal), "Certain
Persons Not to Have Any Weapons, N.J.S.A. 2C:39-7(b)(1)" 1 n4 (rev.
June 13, 2005). This approach was overturned in Bailey.
30 A-5389-15T2 In that case, the defendant was charged with several offenses
arising from an armed robbery, including unlawful possession of a
weapon, possession of a weapon for an unlawful purpose, and a
certain-persons offense, based on the defendant's prior convictions
of predicate offenses. Bailey, 231 N.J. at 474. The trial was
bifurcated, with all charges other than the certain-persons offense
being presented to the jury. After the jury convicted the defendant
of all charges in the first trial, the certain-persons offense was
tried before the same jury. Id. at 478-79.
The defendant would not stipulate to the predicate
convictions. As a result, the parties agreed that evidence of his
prior convictions would be redacted except for the dates and the
degree of the offenses. Id. at 479. After the jury convicted him
of the certain-persons offense, the defendant appealed. He argued
that the State failed to prove every element of the offense because
it offered evidence only that he was convicted of third-degree
offenses, and not of third-degree offenses specified as predicate
offenses in N.J.S.A. 2C:39-7(a). We affirmed. Id. at 480.
The Supreme Court reversed, holding that the "over-
sanitization called for in the model charge injects a
constitutional defect into any trial on a certain-persons offense
where a defendant declines to stipulate." Id. at 488. This
approach "prevents a jury from finding beyond a reasonable doubt a
31 A-5389-15T2 required element of the certain-persons offense – a clear
constitutional infirmity." Id. at 489. To remedy this situation,
the court held that "[w]hen a defendant refuses to stipulate to a
predicate offense under the certain persons statute, the State
shall produce evidence of the predicate offense: the judgment of
conviction with the unredacted nature of the offense, the degree
of offense, and the date of conviction." Id. at 490-91.
Here, defendant was convicted of two prior drug offenses that
qualified as predicate offenses under N.J.S.A. 2C:39-7(a). He did
not stipulate to having been convicted of predicate offenses. As
a result, the State entered into evidence two certified judgments
of conviction. The judgments demonstrated that defendant had been
convicted of distribution of cocaine, and possession of a
controlled, dangerous substance with intent to distribute.
During the jury charge conference which took place before the
trial commenced, defendant requested that the two convictions be
referred to only as “predicate offenses," rather than by name. The
State did not object to this characterization of defendant's
convictions. The trial court agreed to defendant's request. It
is clear, however, that this agreement was based on defendant
entering into a stipulation regarding his prior convictions.
Before the trial commenced, however, defendant's counsel informed
the court that defendant would not enter into a stipulation. The
32 A-5389-15T2 court responded by stating that the previously agreed upon jury
instructions would have to be revised.
In the absence of defendant's stipulation, the State was
compelled to call a witness to secure the admission of two judgments
of conviction. As is required by the holding in Bailey, the witness
discussed the nature of the offenses. That information was
necessary for the jury to make a determination of whether the State
had established an element of the certain-persons charge.
Naturally, the State discussed this evidence in its opening
statement, as did the trial court when instructing the jury on its
need to determine if a predicate offense had been proven beyond a
reasonable doubt. Had defendant genuinely believed that he had
stipulated to his prior convictions, as he argues in written
submissions to this court, his counsel surely would have questioned
the need for the jury to hear any testimony or see any evidence
regarding the prior convictions, apart from the fact that they had
been stipulated to by the parties.
7. The Police Officer's Testimony Regarding the Motel Surveillance Video.
In his pro se brief, defendant, for the first time on appeal,
argues that it was impermissible for the police officer who viewed
the motel surveillance video to have identified defendant as the
man who entered the motel lobby several hours after the shooting.
33 A-5389-15T2 Defendant argues that the officer lacked personal knowledge of
defendant's appearance, rendering his testimony baseless opinion.
N.J.R.E. 701 provides that “[i]f a witness is not testifying
as an expert, the witness' testimony in the form of opinions or
inferences may be admitted if it (a) is rationally based on the
perception of the witness and (b) will assist in understanding the
witness' testimony or in determining a fact in issue.” This rule
permits an officer "to set forth what he or she perceived through
one or more of the senses . . . [such as] what the officer did and
saw . . . .” State v. McLean, 205 N.J. 438, 460 (2011).
We examine the record for plain error. The officer gave a
factual recitation of what he observed on the video. He did not
identify defendant as the shooter. He, instead, provided factual
testimony regarding what he observed, and his lay opinion that the
person in the video resembled a composite sketch. The testimony
was related to the officer's observations and helpful to explain
the investigation that followed the shooting.
8. The Investigator's Notes.
Defendant argues that the State violated its post-indictment
discovery obligations because an investigator destroyed his
contemporaneous investigation notes. We disagree.
"Except for good cause shown, the prosecutor's discovery for
each defendant named in the indictment shall be delivered to the
34 A-5389-15T2 criminal division manager's office, or shall be available through
the prosecutor's office, upon the return or unsealing of the
indictment." R. 3:13-3. "Once an indictment has issued, a
defendant has a right to automatic and broad discovery of the
evidence the State has gathered in support of its charges." State
v. Scoles, 214 N.J. 236, 252-53 (2013).
"[L]aw enforcement officers may not destroy contemporaneous
notes of interviews and observations at the scene of a crime after
producing their final reports." State v. W.B., 205 N.J. 588, 607
(2011) (citing State v. Branch, 182 N.J. 338, 367 n10 (2005)). At
trial, Detective Petroski testified that he drafted his police
report, constituting his contemporaneous notes, in Microsoft Word
before copying and pasting the report into an electronic reporting
system. He thereafter deleted the original Word document. The
electronic report, which was supplied to the defense, contained
all of the detective's contemporaneous notes. The State,
therefore, complied with Rule 3:13-3.
9. Defendant's Sentence.
Defendant contends that the trial court improperly relied on
his prior convictions to both justify its decision to impose an
extended term, and to find aggravating factors at sentencing.
"The court may, upon application of the prosecuting attorney,
sentence a person who has been convicted of a crime of the first,
35 A-5389-15T2 second or third degree to an extended term of imprisonment if it
finds one or more of the grounds specified in" N.J.S.A. 2C:44-3.
An extended sentence is permitted if "[t]he defendant has been
convicted of a crime of the first, second or third degree and is a
persistent offender." N.J.S.A. 2C:44-3(a). A “persistent
offender” is a person (1) who committed his present crime when he
was at least 21 years old, (2) who has been previously convicted
of two crimes on at least two separate occasions, (3) committed at
different times, (4) when he was at least 18 years old, and (5)
the latest in time of these two crimes or the date of defendant’s
last release from confinement, whichever is later, is within ten
years of the date of defendant’s present crime. Ibid.
In State v. Dunbar, 108 N.J. 80 (1987), the Court established
a multi-step process for imposing an extended sentence.
First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, it must determine whether to impose a period of parole ineligibility.
[Id. at 89.]
Once a court finds the statutory requirements have been met, it
may sentence the defendant to a term between the minimum of the
36 A-5389-15T2 ordinary-term range and the maximum of the extended-term range.
State v. Pierce, 188 N.J. 155, 169 (2006).
The judge found that defendant committed the present first-
degree attempted murder when he was thirty-eight. Although
defendant had at least eleven prior felony convictions, the trial
court found him to be extended-term eligible based on three
predicate crimes, only two of which, third-degree escape, and
third-degree possession with intent to distribute a controlled
dangerous substance, both when he was at least 18 years old, are
necessary to justify an extended sentence. The latest in time of
these convictions and defendant's last release from confinement
were within ten years of the present offense.
The court considered defendant's eight other convictions in
determining the sentencing range. A court may consider "other
aspects of defendant's [prior] record, which are not among the
minimal conditions for determining persistent offender status
. . . will be relevant factors in adjudicating the base extended
term." Dunbar, 108 N.J. at 92. The trial court gave appropriate
weight to defendant's history of criminal activity at sentencing.
Defendant also states that the trial court failed to engage
in a proper analysis when imposing a consecutive sentence on the
certain-persons conviction. He argues that the certain-persons
37 A-5389-15T2 offense was not predominantly independent of the substantive
offenses because they occurred at the same time and place.
"[I]n fashioning consecutive or concurrent sentences under
the Code, sentencing courts should be guided by the Code's
paramount sentencing goals that punishment fit the crime, not the
criminal, and that there be a predictable degree of uniformity in
sentencing." State v. Yarbough, 100 N.J. 627, 630 (1985).
In Yarbough, the Court adopted six criteria to be applied
when deciding whether to impose consecutive sentences:
(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;
38 A-5389-15T2 (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.4
[Id. at 643-44 (footnotes omitted).]
The Yarbrough factors “should be applied qualitatively, not
quantitatively . . . [i]t follows that a sentencing court may
impose consecutive sentences even though a majority of the Yarbough
factors support concurrent sentences." Carey, 168 N.J. 413, 427-
28 (2001). “When a sentencing court properly evaluates the
Yarbough factors in light of the record, the court’s decision will
not normally be disturbed on appeal.” State v. Miller, 205 N.J.
109, 129 (2011).
4 The sixth guideline was later superseded by statute. See State v. Carey, 168 N.J. 413, 423 n.1 (2001).
39 A-5389-15T2 The trial court found that the Yarbough factors supported a
concurrent sentence for the unlawful possession of a weapon
conviction, and a consecutive sentence for the certain-persons
offense. The court found that the consecutive sentence was
appropriate based on the clear legislative intent to create two
distinct possessory offenses which call for separate punishments.
Therefore, the court reasoned, even though there were no additional
victims or acts of violence associated with the certain-persons
conviction, the possessory offenses targeted separate and
independent actions warranting separate punishment.
The record supports the trial court's decision. We see no
basis to disturb defendant's sentence.
10. Defendant's Remaining Arguments.
Having reviewed the record and the law in light of defendant's
remaining arguments, we conclude that these arguments are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
40 A-5389-15T2