Opinion
DOCKET NO. A-0583-11T3
02-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH M. BACON-VAUGHTERS, a/k/a KENNETH BACON, a/k/a KENNETH VAUGHTERS, a/k/a KENNY-MIKE, a/k/a KENNETH MICHAEL BACON-VAUGHTERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Espinosa, and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 09-07-1467 and 09-04-0767.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Tried by a jury, defendant Kenneth M. Bacon-Vaughters was convicted of first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1. The court imposed an aggregate sentence of forty years imprisonment with an eighty-five percent parole bar in accordance with the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). On appeal, defendant contends the trial court erred by not charging the jury with the affirmative defense to felony murder; the jury charge was insufficient for failing to instruct the jury on the elements of criminal attempt; the trial court erred in failing to suppress statements made by defendant at a police interview; the victim's dying declaration was improperly admitted and unduly prejudicial; and the sentence was manifestly excessive. We reject these arguments and affirm.
I.
Defendant's conviction arises from the murder of Nathaniel Wiggins on the evening of March 11, 2008. According to the evidence produced at trial, defendant, known as "Kenny Mike," was with his friends, LaShawn Fitch, Aron Pines, and Ian Everett, at Everett's home on Ninth Avenue in Neptune earlier that day. At around 3:30 p.m., defendant left for work. Shortly thereafter, a fight broke out in a park across the street from Everett's home involving Fitch's cousin. The three friends watched the fight, but did not get involved. When the Neptune police arrived, everyone involved in the fight scattered. As the crowd was disbursing, Everett saw someone run through his back yard and jump the fence. When Everett went back to investigate, he saw a gun on the ground and told Fitch to get the gun out of his yard.
To avoid confusion, we will refer to Aron Pines and his brother, Tahj Pines, by their first names.
Later that afternoon, Everett, Fitch and Aron went to the emergency room to visit Fitch's cousin who was injured in the fight. Aron drove them in a white Honda Civic. Afterwards, Everett, Fitch and Aron returned to Everett's home and began to play video games and smoke marijuana. Fitch left briefly to go to his home, across the street. When Fitch returned, he had the gun that had been found earlier in Everett's backyard. While Everett and Aron continued to play video games, Fitch went out Everett's second-floor window and onto the roof, where he discharged the gun. When Fitch returned to the room, he and Aron discussed robbing someone they had seen earlier that day who they referred to as the "weed man." Everett, who did not know the "weed man," declined Aron's invitation to participate in the robbery.
At some point, defendant called Aron and asked to be picked up from work. Aron left to pick up defendant and Fitch left shortly thereafter.
Nathaniel Wiggins sold marijuana out of the apartment he shared with his girlfriend on Route 35, in Eatontown. At about 3:00 p.m. on March 11, 2008, Wiggins picked up his friend, Michael Smith, at his home in Neptune to take him to look for a new car. After picking up Smith, Wiggins stopped to show some friends in Neptune his new dog, then drove down Ninth Avenue, slowing down when he passed the area of Everett's house. Wiggins waived to a group of "kids" who were on the front porch. Aron waived back and identified the driver to Everett as the "weed man."
Around 9:00 p.m., while Smith and Wiggins were shopping, Wiggins received a call on his cell phone. Phone records indicate the call came from Aron's cell phone. Wiggins told Smith the caller wanted to buy marijuana. He said he had seen the caller and his friends earlier that day and described them as "younger kids from Neptune." Wiggins indicated that they were attempting to buy a larger quantity of marijuana than they normally purchased. Wiggins was suspicious as the caller wanted Wiggins to deliver the drugs to Neptune, claiming he didn't have a car, when Wiggins knew he drove a Honda Civic.
After Aron called Wiggins, he called defendant at 9:12 p.m. and again at 9:18 p.m. The cell tower information indicates that the 9:12 p.m. call emanated from Asbury Park and the 9:18 p.m. call began in the vicinity of Asbury Park and carried to a tower in Neptune. At 9:37 p.m., defendant sent his girlfriend, Vania Endrinal, a text message: "Baby, I have to straight sumthings out." About one minute later, defendant sent another friend, Kyana Willis, a text: "iam bout to do sum real live gangsta shit." Willis immediately responded: "wat u b0uta d0?" At 9:39 p.m., defendant responded: "Rob this nigga I hit u wen iam done." At 9:40 p.m., Willis texted back: "Wtf iz wrong with ya dum ass g0d head b stupid."
We reproduce these text messages exactly as they appear in the record.
At 10:04 p.m., defendant received a call on his cell phone from Endrinal. Cell tower information indicates that defendant's phone was utilizing a tower located on Industrial Way in Eatontown which runs perpendicular to Route 35, a short distance from where Wiggins resided.
At about this time, Wiggins was in the bedroom of his apartment with his girlfriend, Faith Montanino, weighing the marijuana he expected to sell. After hearing a knock on the door, Wiggins looked out the window and said, "Oh shit." When Wiggins walked to the kitchen to answer the door, he was shot. Montanino heard the commotion and, after putting on some clothes, went to the kitchen where she saw Wiggins on the floor. Wiggins told her, "Faith, I've been shot. Hide the weed and call the cops." Montanino gathered drugs and paraphernalia into a duffel bag and put the bag in her car. At 10:18 p.m., Montanino dialed 9-1-1.
The first officer to respond was Patrolman Brett Paulus from the Eatontown Police Department. Paulus found Wiggins lying on his side on the floor of the kitchen near the door. Wiggins grabbed Paulus's leg and said, "I'm dying. Oh God, I'm dying." Then unprompted, Wiggins told Paulus, "Kenny Mike shot me." Paulus asked Wiggins where Kenny Mike was from, and Wiggins responded, "Neptune." Wiggins repeated the name of his assailant several times to Paulus and to another officer at the scene before he was transported to the hospital. At 5:30 a.m. on March 12, 2008, Wiggins was pronounced dead from a gunshot wound to the chest.
Montanino was questioned by the police about "Kenny Mike." She told them that one of Wiggins's marijuana customers was known to her as "Little Keeney." She explained that the person's name was actually Kenny, but Wiggins typed in "Keeny" when entering the contact information to his cell phone. After the police obtained a DMV photograph of defendant, Montanino identified him as the person she knew as "Little Keeney." Later that day, Montanino took the police to the house in Neptune where she first saw defendant.
At the time of the shooting, defendant was eighteen and a student at Neptune High School. On March 12, 2008, Detective Edward Nelson of the Eatontown Police Department went with other officers to defendant's school. Defendant agreed to speak with them and accompanied them to an office in Asbury Park where he was questioned for approximately two hours. Defendant admitted that he was known as "Kenny Mike," that he was with Aron Pines and LaShawn Fitch on the day of the shooting, that Aron drives a white Honda, and that he knew Wiggins and had purchased marijuana from him in the past. Defendant denied any involvement in the shooting and said he had never been to Wiggins's apartment.
On March 13, after further investigation linked defendant to the shooting, Detective Nelson asked defendant to return for additional questioning, but he refused. The investigation continued and on March 26, 2008, defendant was brought to the Eatontown Police Headquarters for another interview. When defendant again stated he did not want to talk to the detectives, he was arrested and placed in a holding cell. Several hours later, defendant gave a statement to Nelson.
After waiving his Miranda rights, defendant gave a second statement describing his role in the robbery. He said that Aron called Wiggins to set up the drug purchase as part of a spur-of-the-moment plan to rob the victim of his marijuana. Aron ordered approximately five ounces, but did not intend to pay for it. Aron drove his brother Tahj Pines, Fitch and defendant to Wiggins's apartment. During the ride, defendant said Tahj planned the robbery:
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[Tahj] just said boom you are gonna knock and I'm a come in right behind you and somebody put the gun to him — I mean I might just pistol whip him to let him know we were serious and that's it. I told him make sure that the gun is not loaded and he said alright it's not. Make sure the gun's not loaded, he said it's not.
According to defendant, Tahj wore a black ski mask and gloves and carried a silver revolver. Defendant knocked on the door, and after entering the apartment, heard a shot. Defendant then ran out without taking anything. When defendant got back to the car, he asked Tahj "Why the fuck did you shoot him? You didn't have to shoot him."
At trial, defendant did not present any witnesses. At the close of evidence and following the court's instructions, the jury returned guilty verdicts on all counts.
On June 10, 2011, the trial court denied a motion for a new trial. The counts were merged and the court sentenced defendant to forty years in prison, subject to NERA, on the felony murder count.
Defendant timely filed a notice of appeal and raises the following issues:
POINT I
THE COURT'S REFUSAL TO CHARGE THE STATUTORY AFFIRMATIVE DEFENSE TO FELONY MURDER DEPRIVED THE DEFENDANT OF THE RIGHT TO PRESENT A DEFENSE, DUE PROCESS AND A FAIR TRIAL.
POINT II
THE CHARGES AS A WHOLE WERE DEFECTIVE BECAUSE THE COURT FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF CRIMINAL ATTEMPT IN A FACT PATTERN WHERE THE SUBSTANTIVE OFFENSE WAS NEVER COMPLETED (Not raised below).
POINT III
THE DEFENDANT'S MARCH 12 STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE DETECTIVES
CONTINUED TO QUESTION THE DEFENDANT AFTER HE REQUESTED AN ATTORNEY.
POINT IV
THE COURT ERRED IN ADMITTING THE VICTIM'S STATEMENT, "KENNY MIKE SHOT ME," BECAUSE IT WAS UNTRUE AND UNDULY PREJUDICIAL. FURTHER, THE INSTRUCTION LIMITING ITS USE FAILED TO NEUTRALIZE THE PREJUDICE.
A. THE COURT ERRED IN ADMITTING THE STATEMENT BECAUSE ITS PROBATIVE VALUE WAS OUTWEIGHED BY ITS PREJUDICE.POINT V
B. THE LIMITING INSTRUCTION WAS MISLEADING AND FAILED TO NEUTRALIZE THE PREJUDICE.
THE DEFENDANT'S SENTENCE OF 40 YEARS, WITH AN 85% PAROLE BAR, WAS MANIFESTLY EXCESSIVE.
Defendant filed a pro-se letter brief adding the following point:
POINT I
THE LOWER COURT ERRED WHEN IT DID NOT ADDRESS APPELLANT'S CLAIMS OF THE FAILURE OF THE POLICE TO SCRUPULOUSLY HONOR DEFENDANT'S RIGHT TO COUNSEL AMOUNTED TO THE CONSTRUCTIVE DENIAL OF COUNSEL AND SEPARATELY, INEFFECTIVE ASSISTANCE OF COUNSEL, BOTH IN VIOLATION OF THE FIFTH, AND SIXTH, AMENDMENTS OF THE UNITED STATES CONSTITUTION.
II.
A.
Prior to trial, defendant filed notice that he intended to rely on the statutory affirmative defense to felony murder, N.J.S.A. 2C:11-3(a)(3), also known as the "non-slayer" defense. This statute provides an affirmative defense to a homicidal act if the defendant was not the only participant in the underlying crime and the defendant:
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; andThe four prongs of the felony murder defense "focus on whether the accomplice undertook a homicidal risk or could have foreseen that the commission of the felony might result in death." State v. Martin, 119 N.J. 2, 22-23 (1990). A defendant must present some evidence to support each of the four factors before a request to give the charge should be granted. State v. Kelly, 97 N.J. 178, 200 (1984); State v. Smith, 322 N.J. Super. 385, 396-97 (App. Div.), certif. denied, 162 N.J. 489 (1999). If defendant presents such evidence, the burden then shifts to the State to disprove the defense beyond a reasonable doubt. N.J.S.A. 2C:1-13(b)(1)-(2); see Smith, supra, 322 N.J. Super. at 397-98.
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
[N.J.S.A. 2C:11-3(a)(3).]
At a charge conference on March 18, 2011, the trial judge discussed the first two prongs:
[W]e are dealing now with a motion or the application here to have this affirmative defense charged, and again the counsel have outlined the four prongs as necessary. And again, with regard to under N.J.S.A. 2C:11-3(a) through (d). And when you read that it indicates that all four of those have to be met before the burden then shifts to the State at that point to disprove any of those.As to prongs three and four:
And again, subsection A, I feel again that the defendant did not commit the homicidal act. Pretty much that has been said over and over between the motions and the statement at least points the finger as the shooter being Tahj Jaheed Pines. B kind of couples with A that [defendant] was not armed with a deadly weapon or any instrument.
D, again I think it's arguable based on what [counsel for the State] said, but again subsection C is the one that is troubling to
this Court, at least from the defense perspective to charge this affirmative defense. Because again, just looking at the statement itself, and again I already noted the corroboration, but if you look at the statement itself I don't see how it would fit within subsection C. I think D there's a close call.
But with regard to subsection C, clearly [defendant] in his statement outlines the plan. He was a key participant based on his own statement in the plan. It was he, in his statement, that indicated he was the one who wanted to sell weight. We got the definition of what weight was. That apparently he wanted to get into the business of selling large amounts of marijuana, so that became the plan.
He was clearly aware, if you look at page 27 [of defendant's March 26, 2008 statement], there are references with regard to the gun, the slammer, the description of the gun. He tries to, I guess in a self-serving manner with regard to whether or not you've got to make sure the gun is loaded or unloaded, I should say that really is of no moment. If somebody has the gun and the gun goes off, whether you told them to unload it or not is really no moment with regard to charges of first degree robbery or felony murder.
. . . .
[S]ubsection C clearly based upon the statement and the corroboration that I had found yesterday, cannot be met because there was clearly in this [c]ourt's mind he did have a reasonable ground to believe that someone was armed with a gun and that was [Tahj] in this case. And based on that . . . I am not going to charge that affirmative defense.
Recently, our Supreme Court addressed the issue of when to charge a jury with the defense to felony murder, holding "if a defendant requests a charge on the defense and there is a rational basis in the record to give it, then the court should give the requested instruction." State v. Walker, 203 N.J. 73, 87 (2010). The Court explained that the Legislature's purpose in adopting the affirmative defense "was to deal with a defendant who did not assume a homicidal risk in 'an appropriate way by holding them responsible for the felony but not for the homicide.'" Id. at 83 (quoting Martin, supra, 119 N.J. at 22).
Defendant contends that the trial judge erred in determining there was no evidence to support the third prong of the affirmative defense. Defendant relies on his March 26, 2008 statement where he told Nelson: "[Tahj] popped the trunk. He was like Aron pop your trunk. I guess he put the gun in the trunk. He said I got the slammer in the car, in the trunk and we will meet you . . . ." Defendant contends this quote supports his claim that he did not know Tahj was armed at the time of the shooting. We disagree.
The statement confirms that defendant was aware that Tahj was armed and intended to use the weapon, in some capacity, during the robbery. Defendant admitted that when they were planning the robbery, Tahj instructed defendant to knock on the door. Once Wiggins opened the door, Tahj planned to "come in right behind [defendant] and . . . put the gun to him [and] . . . pistol whip him to let him know we were serious . . . ." This statement does not support defendant's claim that he had no reasonable ground to believe that any other participant was armed, as it was clear that he knew the gun would be used in the robbery.
B.
Defendant next argues, for the first time on appeal, that the trial court failed to give a proper instruction for the crime of attempted robbery. Specifically, defendant claims the robbery was not completed "because the defendant left the scene without obtaining his objective, the marijuana." As defendant failed to object to the jury charge, he must now show that any omission was plain error. R. 1:7-2.
"[A] defendant can be convicted of robbery, even if the theft is unsuccessful, if he or she (1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury." State v. Farrad, 164 N.J. 247, 258 (2000). Here, the evidence at trial established that defendant and Tahj entered Wiggins's apartment with the specific intent to steal his marijuana. Defendant was aware that Tahj was armed and planned to use the gun during the commission of the robbery.
In addition, the trial judge adequately and accurately charged attempt in the context of the commission of a first-degree robbery. The trial judge first outlined the elements of a robbery, and next advised the jury that "the State must prove beyond a reasonable doubt that the defendant . . . was in the course of committing a theft." The judge continued:
Now, theft is defined as the unlawful taking or exercise of unlawful control over property of another with the purpose to deprive him thereof. Now I have used the phrase "with purpose." You may hear me use that phrase or the word "purposely." Again I shall now explain what that means.The judge then defined "attempt" in the context of first-degree robbery:
. . . .
A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose," "design," "with design," or equivalent terms have the same meaning.
Purpose is a state of mind that cannot be seen and can only be determined by inference, from conduct words or acts. Therefore, it is not necessary that the State produce witnesses to testify that a defendant said that he purposely did something. The defendant's purpose may be gathered from his acts and conduct, from all that he said and did at a particular time and place, and from all the surrounding circumstances reflected in the testimony at trial.
In order for you to determine the answer to this question you must understand the meaning of the word "attempt" within this context.
A person is guilty of an attempt to kill or inflict serious bodily injury if he purposely commits an act which constitutes a substantial step towards the commission of a killing or the infliction of serious bodily harm.
In State v. Belliard, 415 N.J. Super. 51, 73 (App. Div. 2010), certif. denied, 205 N.J. 81 (2011), we found that a judge's failure to charge the jury with attempt was not plain error where the "[d]efendant, in effect, admitted to committing one of the elements of robbery." Here, the judge adequately instructed the jury on the concept of attempt and there was no error, let alone, plain error.
C.
Next, the defendant argues that his March 12, 2008 statement was taken in violation of his Miranda rights because he requested to speak with an attorney.
After the police met defendant at Neptune High School, they told him they were investigating a homicide and wanted to ask him some questions. He voluntarily accompanied them to an office where the questioning was video-taped. Detective Daniel Baldwin told defendant he was going to advise him of the Miranda warnings. Defendant asked if he was under arrest and Baldwin replied that he was not. Baldwin then gave defendant a form containing the Miranda warnings and asked to read it. After defendant read each warning, Baldwin asked him if he understood, and he responded affirmatively. Baldwin then asked defendant if he wanted to waive his right to remain silent and answer questions. Defendant responded: "yeah, I'm willing to talk." After defendant had read each Miranda warning, Baldwin began to repeat the warnings:
BALDWIN: I just want to make sure you know . . . we're not playing any games with you . . . I just want to make sure you understand everything . . . anything you say may be used against you in a court of law . . . you clearly understand that right?The trial judge determined that defendant was subject to a custodial interrogation, but knowingly and voluntarily waived his Miranda rights. In addition, the court found:
DEDENDANT: I understand it . . . .
BALDWIN: You do?
DEFENDANT: Yeah . . . .
BALDWIN: Okay . . . you have the right to consult with an attorney at any time and have him present before and during questioning . . . do you understand that right?
DEFENDANT: Yeah, you can call my attorney then?
BALDWIN: I'm sorry . . . .
DEFENDANT: You can call my mom . . . get my attorney down here because I don't know what is going on.
BALDWIN: No . . . I mean, that's totally up to you, but you want me to do that before we even tell you what's going on?
DEFENDANT: I mean . . .
BALDWIN: And ask you questions . . . .
DEFENDANT: The second one got me kind of . . . sometimes stuff gets turned around . . . I don't want that to . . . happen.
BALDWIN: Okay. Alright, so you want to talk to your mother first?
DEFENDANT: Matter of fact no . . . no. Let's go run through this . . . I want to know what's going on.
BALDWIN: Alright . . . Really, you want to know what's going on . . . You sure?
DEFENDANT: Yeah . . . I'm positive.
BALDWIN: It's totally up to you . . . Now we're not twisting your arm or trying to . . . .
DEFENDANT: No, I'm positive.
[W]hat Det. Baldwin was doing was asking clarifying questions. He was not putting any undue pressure on this defendant. He asked him are you sure? It is totally up to you.
Det. Baldwin was not, and that is very clear from the tape. It was a quick series of questions and responses. I think the officer has a duty to clarify. He did not seem to be doing that with the purpose to coerce any type of statement out of the defendant.
He was asking it for clarifying purposes to see whether or not the statement would go forward at that time.
"We review the record on a motion to suppress to determine whether the findings are supported by credible evidence and the legal conclusions are valid." State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005). "Under our state law, the prosecution at a Miranda hearing must prove beyond a reasonable doubt that a defendant's waiver of the privilege was knowing, intelligent, and voluntary . . . ." State v. O'Neill, 193 N.J. 148, 168 n.12 (2007).
With regard to the right to remain silent, we apply a "totality of the circumstances approach" which "focuses on the reasonable interpretation of the defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 563-64 (2012). If a defendant offers an equivocal invocation of the right to remain silent, our courts have "not required that the interrogation immediately cease, but have instead permitted officers to clarify the otherwise ambiguous words or acts." Id. at 564-65 (citing State v. Johnson, 120 N.J. 263, 283 (1990)). Furthermore, a police officer is permitted to ask non-substantive questions in order to discern whether a defendant is asserting his privilege. State v. Alston, 204 N.J. 614, 623 (2011); see also State v. Fussell, 174 N.J. Super. 14, 21 (App. Div. 1980). "[W]hen faced with an ambiguous assertion of a right, it is only through evaluation of clarifying follow-up inquiries and the responses to those inquiries that a court can ensure that a waiver of defendant's right was given intentionally and voluntarily." Ibid.
If the defendant asks for counsel, all questions must cease, though clarification is permitted. Alston, supra, 204 N.J. at 624. Here, the trial court found Baldwin's questioning to be an attempt to clarify defendant's equivocal statement. The follow-up questions by Baldwin clearly confirm that defendant was not invoking his right to counsel. Defendant repeated twice that he was "positive" that he wished to proceed with the questioning. We reject defendant's argument that his statement should have been suppressed.
D.
Defendant next argues that the trial court erred in admitting the victim's statement that "Kenny Mike shot me." The statement was introduced twice at trial. The State's first witness was Hugh McKenna, who received the 9-1-1 call from Faith Montanino. A recording of the call was played for the jury and Wiggins could be heard identifying "Kenny Mike" as the person who shot him. Officer Paulus testified that after Wiggins said he was dying, he identified Kenny Mike as the shooter.
The trial judge found that Wiggins's statement to Paulus was a dying declaration and a similar statement by the victim heard on the 9-1-1 tape was not being offered to prove the truth of the matter asserted but to establish that defendant was at the scene of the shooting. The judge gave the jury limiting instructions before the 9-1-1 tape was played:
The court issued a similar instruction before the testimony of Officer Paulus and during the jury instructions.
--------
Prior to the 9-1-1 call being played for you to hear, I should indicate that on there you will hear some statements, you will hear a dying declaration of Nathaniel Wiggins, and you'll hear conversations of the officers at the apartment on the night of March 11, 2008.
Those statements had previously been ruled to be admissible in evidence . . . at an earlier hearing. The dying declarations are statements of Mr. Wiggins are being utilized among other reasons by the State to establish that [defendant], was at the scene of the shooting.
Defendant first argues that the probative value of the statement was outweighed by its prejudice. "We review the trial court's evidentiary rulings under a deferential standard; it should be upheld 'absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). If the ruling is "so wide of the mark that a manifest denial of justice resulted," the decision of the trial court should be overturned. Ibid.
Pursuant to N.J.R.E. 804(b)(2), a dying declaration is admissible if "it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death." Dying declarations were historically allowed because "one who is conscious of his impending death will not make untrue statements, but rather will feel compelled to tell the truth." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 804(b)(2) (2012). When Paulus first saw Wiggins on the floor of his kitchen, Wiggins told the officer, "Oh, God, I'm dying." Without any questioning or prompting by Paulus, he said, "Kenny Mike shot me." Wiggins, who was mortally wounded and died a few hours later, was clearly conscious of his impending death and the statement "Kenny Mike shot me" is a textbook example of a dying declaration.
The trial court additionally admitted the same statement transmitted during the 9-1-1 call as non-hearsay as it was not offered to prove that defendant actually shot Wiggins, but rather that he was at the scene of the shooting. See N.J.R.E. 801(c). Defendant argues that N.J.R.E. 403(a) provides for the exclusion of the statement because "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion of issues, or misleading the jury."
Defendant additionally argues that the limiting instruction regarding the 9-1-1 call was misleading and failed to neutralize prejudice to defendant. We first note that, not only did defendant fail to object to the limiting instruction at trial, he actually requested the instruction during the testimony of Officer Paulus. Thus, we review this claim under the doctrine of invited error. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010) (holding that where defense counsel makes strategic decision at trial, a reviewing court will not reverse in the absence of fundamental injustice). "The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996).
Here, the record is clear that each time the victim's statement to the 9-1-1 operator was referenced, defendant requested and received the limiting instruction. We find no abuse of discretion in admitting the statement or in the court's instruction to the jury as to the proper use of the statement.
E.
Finally, defendant argues that his sentence was excessive and "derived without consideration of all of the applicable mitigating factors." Appellate review of sentencing decisions is relatively narrow and governed by an abuse of discretion standard. In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether the "'factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" State v. Blackmon, 202 N.J. 283, 297 (2010) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). If the sentence "shocks the judicial conscience" it will be overturned, but this court should not "substitute [its] judgment about a sentence [it] would have selected . . . ." Ibid.
At the sentencing hearing, the judge merged count one (conspiracy) and count two (possession of a weapon for an unlawful purpose) into count three (robbery); and merged count three into count four (felony murder) for the purposes of sentencing. Felony murder has a minimum sentence of thirty years with a thirty-year parole bar. N.J.S.A. 2C:11-3b(1).
The judge considered all mitigating and aggravating factors as well as listening to testimony from Defendant and a relative of the victim. The judge found support for aggravating factors three (risk defendant will commit another offense), six (defendant's prior record), and nine (the need to deter), and found support for mitigating factor twelve (defendant cooperated with law enforcement). See N.J.S.A. 2C:44-1(a)-(b).
Defendant argues the trial court did not properly consider mitigating factor four (substantial grounds tending to excuse or justify defendant's conduct). N.J.S.A. 2C:44-1(b)(4). Defendant points to his intermittent homelessness and stable employment at the time of the crime, as well as a sworn proffer from Aron Pines stating defendant attempted to end his participation in the offense. However, the trial judge found:
[Mitigating factor four] has been advocated, there was substantial grounds tending to excuse or justify defendant's conduct. Again, when the plan is hatched, you're aware a gun is going to be there - - whether you know it's loaded or not, the gun is going to be there. That could be used in a variety of ways.We are satisfied that the sentencing court properly analyzed the mitigating factor and rejected it. Defendant's sentence, in light of the mitigating and aggravating factors, does not shock the judicial conscience and we discern no reason to disturb defendant's sentence.
Mr. Bacon-Vaughters indicated he thought [Tahj] was going to pistol whip [Wiggins]. Well, that can cause serious injuries, so I don't find there was any substantial grounds tending to excuse the defendant's conduct.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION