Opinion
DOCKET NO. A-0031-13T3
04-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAWUD S. GREENE a/k/a JUSTICE GREENE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-09-1622. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
After a jury trial, defendant Dawud S. Greene was convicted of a "certain persons" weapons possession offense, N.J.S.A. 2C:39-7(b)(1). The trial court sentenced defendant to an extended term of fifteen years, with a parole ineligibility period of seven and one-half years. In this direct appeal, defendant challenges his conviction and sentence on various grounds. We affirm.
The State's proofs at trial established that on May 11, 2011, the police confiscated a gun from a Yukon SUV. The Yukon had been parked in Asbury Park in front of the apartment complex of S.B. S.B. contacted the Asbury Park Police Department and reported that she had seen defendant that morning running toward the Yukon and placing a black object that appeared to be a handgun under the rear passenger seat. She also reported that she overheard defendant saying that he was going to kill three people and that he had shot another individual, S.H., the previous night.
In our discretion, we use initials for the individual who came forward and reported the offense to the police and for the other third parties mentioned in this opinion.
After receiving this information from S.B., the police located the Yukon parked on the street. They tracked down the registered owner of the vehicle, A.W., who is the long-time girlfriend of defendant's father. A.W. went down to the police station and signed and initialed a consent-to-search form. The police then found a nine millimeter handgun under the rear passenger seat, consistent with S.B.'s report.
Prior to trial, defendant moved to suppress the police's seizure of the handgun. A.W. testified at the suppression hearing and claimed that she had been scared by the police into signing the consent form and that she had not done so with her free will. The trial judge rejected her testimony as "wholly and entirely incredible[,]" noting that her testimony "wa[]vered constantly and was borderline incoherent." Accordingly, the judge denied the suppression motion.
At the ensuing trial, S.B. was the key witness for the State. She essentially repeated the facts that she had relayed to the police. In essence, as a direct eyewitness, S.B. observed defendant placing a gun inside of his father's girlfriend's car presumably in an effort to conceal the weapon because of the shooting incident the night before. There were some minor variations, however, in the details she described at trial compared with her earlier statement to the police, including whether she saw the defendant while she was outside or indoors, whether he was running, and a few other matters.
Defendant stipulated at trial that he had previously been convicted of a predicate offense that made it illegal for him to possess a gun under the "certain persons" statute. He also stipulated as to the propriety of the State's chain of custody for the gun after its seizure, and that the gun was substantially in the same condition at trial as when it was seized. He also stipulated that he had been issued four prior traffic summons in 2010 and in 2011 relating to his operation of the Yukon and resulting in his conviction of three traffic offenses.
Defendant did not testify at trial. His sole witness was a defense investigator who had taken photographs and measurements at the location of the crime scene. In his summation, defense counsel argued that S.B. was not a credible witness and that the police had not conducted an adequate investigation. He further argued that the fact that defendant had driven the Yukon in the past does not mean that he had been driving it on or about the day that the gun was confiscated from it.
On appeal, defendant raises the following arguments through his appellate counsel:
POINT ONE
THE TRIAL COURT'S DECISION DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM [A.W.'S] CAR MUST BE REVERSED BECAUSE [A.W.'S] CONSENT TO SEARCH WAS NOT VOLUNTARY.
POINT TWO
THE TRIAL JUDGE'S REFUSAL TO PROVIDE A "FALSE IN ONE, FALSE IN ALL" JURY INSTRUCTION ON CREDIBILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.
POINT THREE
DEFENDANT'S FIFTEEN-YEAR EXTENDED TERM IS NOT SUPPORTED BY A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS.
Defendant also presents the following contentions in a pro se supplemental brief:
SUPPLEMENTAL POINT IHaving considered the record in light of the applicable legal principles, we conclude that none of these arguments have merit.
PETITIONER'S CLAIM REGARDING RIGHT OF CONFRONTATION.
SUPPLEMENTAL POINT II
THE STATE PROVIDED HIGHLY INFLAMMATORY EVIDENCE OF PRIOR BAD ACTS AND/OR UNCHARGED CRIMES DURING [SIC] RENDERING THE GRAND JURY PROCEEDINGS UNFAIR.
SUPPLEMENTAL POINT III
CONCLUSORY AFFIDAVITS, AFFIDAVITS [SIC], AFFIDAVITS [SIC], THAT CONCLUDE THERE IS PROBABLE CAUSE WITHOUT A REAL ATTEMPT TO SHOW ALL THE UNDERLYING FACTS, ARE DEFICIENT UNDER ILLINOIS V. GATES, 462 U.S. 213, 239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
SUPPLEMENTAL POINT IV
THE VERDICTS WERE SHARPLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL.
Defendant first contests the trial court's denial of his motion to suppress the seized handgun. He reiterates his argument from the suppression hearing that A.W.'s consent to search the Yukon was not voluntary. We disagree, substantially for the sound reasons articulated in Judge Mullaney's April 17, 2012 written opinion on that issue. The judge cited ample grounds for rejecting defendant's claim of involuntariness, including his pointed finding concerning A.W.'s lack of credibility at the hearing. We owe substantial deference to that factual finding because it is "supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)).
A.W. had the legal authority as the registered owner of the vehicle to consent to it being searched. As A.W. acknowledged, she willingly came to the police station to answer questions about the vehicle. She was administered Miranda warnings before signing and initialing the consent-to-search form. The police officer who testified at the suppression hearing about her interview described her demeanor as "relaxed[.]" She specifically denied to the officer that anyone had forced or coerced her into providing her consent. Although defendant advocates a different version of the process that resulted in the signed consent form, we find more than sufficient evidence in the record to sustain the trial court's findings.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
Defendant next complains that the trial judge erred in failing to issue a requested "false-in-one, false-in-all" jury instruction on witness credibility. He argues that such an instruction was specifically warranted with respect to S.B. because of various inconsistencies between her original statement to the police, her subsequent testimony at a pretrial hearing on identification, and her ultimate testimony at trial.
The model charge advises that if the jurors find that any witness "willfully or knowingly testified falsely to any material facts in the case, with intent to deceive [them], [the jury] may give such weight to his or her testimony as [they] may deem it is entitled." Model Jury Charge (Criminal), "False in One-False in All" (1991). It has been long recognized that the issuance of a false-in-one, false-in-all charge rests in the sound discretion of the trial judge. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961); State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.) (noting that the evidential inference of repetitive falsity is not mandatory), certif. denied, 33 N.J. 109 (1960). "Inadvertent misstatements or immaterial falsehoods are not grounds for complete rejection of a witness'[s] testimony." State v. D'Ippolito, 22 N.J. 318, 324 (1956).
The trial judge did not misapply his discretion here in declining to issue this jury instruction. We agree with the judge's assessment that the inconsistencies in S.B.'s statements identified by defendant were relatively minor in nature and not patently indicative of deliberate lying. Notably, S.B. never wavered on the most critical facets of the incident, particularly her observation that she saw defendant place a black object that looked like a gun into the Yukon.
The customary and comprehensive general jury instruction regarding witness credibility issued by the court, which includes an assessment of whether any witness "testified with an intent to deceive you," sufficed under these circumstances. Model Jury Charge (Criminal), Criminal Final Charge "Credibility of Witnesses" (2014). Moreover, any alleged error in omitting the "false-in-one" instruction was harmless, in light of defendant's multiple other permitted attacks on S.B.'s credibility, including her prior criminal convictions which were the subject of a specific jury instruction on credibility. Model Jury Charge (Criminal), "Credibility – Prior Conviction of a Witness" (2003).
The third point raised by defendant is that his extended-term sentence was excessive. In particular, he argues that the sentencing judge's findings of aggravating factors impermissibly "double-counted" aspects of his criminal record that also bear upon his eligibility as a persistent offender for an extended term. These arguments have no merit.
The judge's sentencing analysis comported with State v. Dunbar, 108 N.J. 80, 89 (1987), and other case law that permits prior offenses to be taken into account for both a defendant's eligibility for an extended-term range and the ultimate sentence within that extended-term range that the judge chooses to impose, so long as the judge makes sufficient findings that identify and balance the pertinent aggravating and mitigating factors in determining at what point within the expanded range the sentence's base term will be fixed. See also State v. Pierce, 188 N.J. 155, 168 (2006). The judge made such adequate findings of aggravating factors here, including defendant's high risk of re-offense and the need for deterrence, as demonstrated by what the judge rightly discussed as his "very extensive" record. That record included fourteen prior juvenile adjudications and five adult prior convictions, including a conviction for illegal possession of a handgun. There were no identified mitigating factors.
On the whole, we are satisfied that the judge did not misapply his discretion in imposing the fifteen-year extended term sentence on this chronic repeat offender. The judge's analysis of the sentencing factors is well-supported, and the penalty imposed does not shock our conscience. State v. Case, 220 N.J. 49, 65 (2014); State v. Roth, 95 N.J. 334, 365 (1984).
Although we have fully considered them, defendant's additional arguments presented in his pro se supplemental brief lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION