Opinion
DOCKET NO. A-0859-10T4
03-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIE SHUMAN, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Daniel A. Matos, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-06-0597.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Daniel A. Matos, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A Mercer County grand jury charged defendant Willie Shuman, Jr., and co-defendants Michael Smith, Dennis Merritt (Dennis),and Melanie Merritt (Melanie) with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count six); and first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count seven). Defendant was tried separately. Following a five-day trial, a jury acquitted defendant of conspiracy to commit murder (count seven), but convicted him of the lesser-included offense of second-degree conspiracy to commit aggravated assault and counts one through six of the indictment.
Because co-defendants share the same surname, we use their first names to avoid confusion.
At sentencing, the court merged counts two, three, and four into count one and sentenced defendant to a seventeen-and-one-half-year prison term subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:4 3-7.2. Defendant received concurrent sentences on counts five and six. Appropriate penalties, fees, and assessments were also imposed.
On appeal, defendant presents the following arguments:
POINT I
THE ADMISSION OF TESTIMONIAL HEARSAY, FROM NON-TESTIFYING ALLEGED ACCOMPLICES WHO IMPLICATED DEFENDANT IN THEIR POLICE STATEMENTS, VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
POINT II
THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR ATTEMPTED MURDER.
POINT III
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
Based on our review of the record and the applicable law, we are satisfied that defendant received a fair trial and an appropriate sentence. However, we agree that count five (possession of a weapon for an unlawful purpose) should have been merged with count one (attempted murder), and we remand for the entry of an amended judgment of conviction.
On December 15, 2007, Chaz Mathis helped Melanie and her husband Dennis move their apartment furnishings from Trenton into a storage unit in Ewing, New Jersey. Mathis transported the couple's belongings in his van.
Five days later, on December 20, 2007, Melanie called Mathis and accused him of stealing a television and a gold chain during the move. Mathis denied the allegations. Later that day, Mathis was approached outside his Trenton boarding house by Smith. Smith questioned Mathis about the items, and Mathis again denied the allegations. Mathis invited Smith to inspect his bedroom for the items, but Smith said "I believe you" and left.
Following his conversation with Smith, Mathis went to his second-floor bedroom to take a nap. About forty-five minutes later, he heard his name being called and woke up to see a man in the doorway, holding a gun. Mathis tried "to roll out of the way," but the gunman shot him four times.
Mathis was taken to a nearby hospital, where he was treated by Dr. Mohammed Saleem, a trauma surgeon. According to Dr. Saleem, it was "a life threatening situation," because Mathis suffered bullet wounds in his "left shoulder," "right armpit," "left flank," and "left proximal thigh"; a fractured left femur; and internal hemorrhaging. Mathis remained in the hospital for about two weeks, and later received a stent to control excessive bleeding.
Detective Matthew Kemp of the West Windsor Township Police Department investigated the shooting. When Kemp spoke with Mathis at the hospital, Mathis said he believed Dennis was involved, and that a "black male, very big, tall, six foot four, [weighing] 300 pounds" was involved. This matched the description of Smith.
Kemp met with Smith on December 26, 2007. According to Smith, he only gave Kemp "a little bit" of information about the incident at that time. However, when they met a second time on January 2, 2008, Smith provided Kemp with a formal statement, which explained what happened.
On January 17, 2008, Smith was arrested and charged with attempted murder and other offenses. The following day, while in custody, Smith asked to speak with Kemp. During that meeting, Smith identified defendant as the shooter. Defendant was arrested on January 23, 2008.
When Kemp interviewed defendant on January 24, 2008, he confessed to shooting Mathis and provided the police with a videotaped statement, which was admitted into evidence at defendant's trial. In his statement, defendant confirmed that Smith led him to Mathis' bedroom. Defendant also admitted that he pushed open the unlocked door to Mathis' room, saw Mathis "on the bed," and "squeezed [the gun] four times."
Neither Dennis nor Melanie testified at trial. However, Smith testified for the State, and he made an in-court identification of defendant as the shooter. Smith explained that after he spoke to Mathis on December 20, 2007, he learned Melanie was sending her cousin to "pick up the TVs," and he should wait outside the boarding house to show Melanie's cousin where Mathis lived. A short while later, a man, subsequently identified as defendant, exited a car near the boarding house. Defendant asked Smith if he was the person who was "supposed to show him where to pick up the TVs." Smith testified he had never seen defendant before and did not know his name at the time. Because Smith had resided in the boarding house in the past, he was familiar with its layout, and he led defendant to Mathis' bedroom. In addition, Smith testified defendant "kicked open" Mathis' door, pulled out a gun, and fired "shots [into] the room."
Defendant testified on his own behalf. On direct examination, defendant denied he was involved in the shooting. Defendant admitted he told Kemp he shot Mathis, but defendant claimed he did so because he "felt it was the only way [he] was going to get home to [his] fiancée and kids."
On cross-examination, defendant conceded he had signed a Miranda form and a waiver of rights prior to his videotaped statement. Nevertheless, he testified his confession was a lie:
Miranda v. Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).
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Q. [The Miranda form] indicates that you read the statement of your rights?
A. Yes, ma'am.
Q. And it indicates that you understand them. The next line indicates, "I understand what my rights are"?
A. Yes, ma'am.
Q. And then it is followed [by], "I am willing to make a statement and answer questions," correct?
A. Yes, ma'am.
Q. And then it says, "I don't want a lawyer at this time"?
A. Yes, ma'am.
Q. And then does it say, "I understand and know what I'm doing"?
A. Yes, ma'am.
Q. "No promises or threats have been made to me."
A. Yes, ma'am.
Q. "No pressure or coercion of any kind has been used against me."
A. Yes, ma'am.
Q. You signed it?
A. Yes, ma'am.
. . . .
Q. Are you telling this jury that the confession that you gave was all a lie?
A. Yes, ma'am.
The jury began deliberating on February 23, 2010, and reached a verdict the following day. Defendant was sentenced on July 2, 2010.
Defendant first argues that the admission of testimony by Kemp, which described interviews with individuals who did not testify, was inadmissible hearsay. He further argues that the testimony deprived him of his right to a fair trial. U.S. Const. amend. XIV; N.J. Const. art. I, ¶ 1, 9, 10. We do not agree.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). While hearsay evidence is presumptively inadmissible, N.J.R.E. 802, not all hearsay implicates the Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004). "Both the hearsay rule and the right of confrontation protect a defendant from the incriminating statements of a faceless accuser who remains in the shadows and avoids the light of court." State v. Branch, 182 N.J. 338, 348 (2005).
A "police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." Id. at 351. However, it is well-settled that a police officer may testify that he acted "based 'upon information received,' in order to show that the officer was not acting in an arbitrary manner." Ibid. (quoting State v. Bankston, 63 N.J. 263, 268 (1973)).
In this case, Kemp testified that based on his conversation with Mathis at the hospital, he believed that Dennis and another individual were involved in the shooting. Kemp also testified that after he spoke to Mathis' neighbor, he believed "Smith was definitely involved" and "there may have been another individual that participated in the actual incident." In addition, after speaking with Dennis and Melanie, Kemp said he thought they were both involved. However, Kemp did not identify defendant as a potential suspect until after Smith's identification. Moreover, because Smith testified at defendant's trial, Kemp did not imply to the jury that defendant was a suspect based on information he received from non-testifying witnesses. See Branch, supra, 182 N.J. at 351.
We review Kemp's testimony, to which there was no objection, for plain error. R. 2:10-2 (instructing appellate courts to disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result"). In this case, we find no error, much less plain error.
In his second point, defendant argues that the trial court erred by failing to merge his conviction for second-degree possession of a weapon for an unlawful purpose (count five) with his conviction for first-degree attempted murder (count one). "The purpose of merger is to avoid double punishment for a single wrongdoing." State v. Diaz, 144 N.J. 628, 637 (1996). "When the only unlawful purpose in possessing [a] gun is to use it to commit the substantive offense, merger is required." Id. at 636. In the present matter, we agree that merger is appropriate because defendant's unlawful purpose in possessing the gun was to commit the substantive offense of first-degree attempted murder.
In his third point, defendant claims his sentence is excessive in light of the sentences that the co-defendants received. When reviewing a sentence, we must determine whether the trial court's findings of fact regarding the aggravating and mitigating factors were based on "competent, reasonably credible evidence," whether the trial court applied "correct legal principles in exercising its discretion," and whether "the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984); see also State v. Roach, 146 N.J. 208, 230 ("An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable."), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
In this case, the trial court's findings were based on competent and credible evidence, it correctly applied the sentencing guidelines, and defendant's sentence was clearly justifiable because he shot the unarmed victim four times. Accordingly, we reject defendant's argument that his sentence is excessive.
In view of the foregoing, we affirm defendant's convictions and his sentence but remand for entry of an amended judgment of conviction merging count five with count one.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION