Opinion
DOCKET NO. A-4054-12T2
02-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTOINE WILLIAMS, a/k/a ANTAINE T. WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-08-1444. Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Antoine Williams is serving an aggregate fifty-year prison term, a jury having convicted him of murder, hindering apprehension, certain persons not to have weapons, and other offenses, after finding him guilty of shooting and killing a man during a home-invasion robbery. Defendant raises the following issues on appeal:
POINT I
THE STATE FAILED TO INTRODUCE SUFFICIENT EVIDENCE OF CORROBORATION FOR DEFENDANT'S CONFESSION - EXACERBATED BY THE PROSECUTOR'S MISSTATEMENT OF THE LAW IN THIS REGARD AND THE LACK OF EXPLANATORY INSTRUCTIONS TO THE JURY, WARRANTING VACATION OF DEFENDANT'S CONVICTIONS OBTAINED BELOW (PLAIN ERROR).
POINT II
THE TRIAL COURT ERRED IN PERMITTING IMPROPER BANKSTON TESTIMONY BEFORE THE JURY.
POINT III
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
We find no merit in defendant's claims concerning his convictions, which we affirm. We also affirm his sentence, with the exception of the consecutive terms imposed on the hindering apprehension and certain persons not to have weapons offenses. The trial court failed to undertake an adequate Yarbough analysis to support the imposition of consecutive sentences on these two crimes. We therefore vacate the sentence on these two offenses and remand for a proper sentencing analysis and resentencing.
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.2d 308 (1986).
A Middlesex County grand jury charged defendant in eight counts of a ten-count indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); second-degree burglary, N.J.S.A. 2C:18-2 (count four); first-degree conspiracy to commit murder, robbery, and burglary, N.J.S.A. 2C:5-2 (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count eight). The grand jury also charged codefendant, David Jordan, with most of those crimes and, in counts nine and ten, with two counts of third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4). In a separate indictment, the grand jury charged defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
Defendant and co-defendant were tried separately. Following six days of trial, a jury convicted defendant on count one of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, as well as all remaining counts of both indictments. At sentencing, following appropriate mergers, the court sentenced defendant on count two, felony murder, to a forty-year prison term with thirty-five years of parole ineligibility; on count three, robbery, to a concurrent twenty-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2; on count seven, unlawful possession of a weapon, to a ten-year prison term, with five years of parole ineligibility, concurrent to count two; on count eight, hindering apprehension, to a consecutive five-year prison term; and, on the certain persons not to have weapons offense charged in the second indictment, to a ten-year prison term consecutive to the felony murder count but concurrent with the hindering apprehension count. The court also imposed appropriate penalties and assessments. Defendant appeals from the judgment of conviction.
After returning its verdict on the first indictment, the jury was charged on the sole count of the second indictment and thereafter convicted defendant on the certain persons not to have weapons offense.
The State presented the following proofs at trial. The victim, Al Mustafa Rodriguez, was shot and killed in his South Plainfield residence on the morning of April 14, 2008. The previous evening, he had called a friend on his cell phone because the cable for his three-in-one Comcast television, telephone, and internet service was not working. His friend advised him to call Comcast because there might be an outage in the area.
The next morning, at 10:15, a Comcast repairman arrived at the victim's home. When he knocked on the door there was no response. The repairman inspected the cable to the victim's home and saw that it had been cut near the side of the house. The repairman knew from the angle of the cut and its location near the house — Comcast only disconnected its cables near a telephone pole — it had been deliberately cut. The repairman repaired the cable and then attempted to reach the victim at work, the victim having given Comcast his work number when he called for service. The employer told the repairman the victim was not at work. The repairman put the customer's copy of the work order in the victim's mailbox and left.
That night the victim's brother, accompanied by a friend, went to the victim's home at approximately 8:30 or 9:00. He immediately realized something was wrong when he found the front door unlocked. He explained that the victim was paranoid about people he did not know entering the home. Upon entering, the brother and his friend saw that the house was in complete disarray. The living room couch had been moved and papers were strewn everywhere; the house was a mess. Peering through the bedroom door, the two saw the victim's body lying on the floor, blood everywhere. They called the police, who arrived approximately fifteen minutes later.
Although the victim's brother did not return to the house that night, he returned during the ensuing police investigation. He discovered the victim's safe was missing from the bedroom closet. According to the brother, the victim once kept money in the safe, but might have lost it gambling. The victim also kept jewelry in the safe: a twenty-carat tennis bracelet, a ten-carat ring, and a twenty-carat necklace with a medallion bearing the victim's record label, "Gorilla Pimp Records." The medallion was made of white gold and was diamond-studded. The victim's brother identified a photograph of the victim wearing the jewelry.
Police officers responded to the scene and members of the crime scene unit photographed the condition of the victim's home. They photographed the living room, as described by the victim's brother; and the bedroom, where the mattress had been turned over and torn, dresser drawers had been pulled out and left on the floor, and clothing had been scattered everywhere. The victim was lying face down, with a pool of blood around his head. The police also found blood on the bedroom floor and closet door, and a blood drop on the bathroom sink.
Like the living room and bedroom, the kitchen was in complete disarray. The stove had been torn apart, cabinet drawers were open and various items in the kitchen were strewn about. The only rooms undisturbed were the basement and attic.
Crime scene investigators collected evidence, including blood samples from throughout the house. Investigators also found evidence of two gunshots, including two spent nine millimeter shell casings and one projectile. A forensic ballistics expert testified at trial the shell casings were from a single weapon. Experts in serology — the study of bodily fluids — and DNA established that DNA from the blood and other evidence collected at the crime scene matched two people: the victim and co-defendant Jordan.
The Assistant Middlesex County Medical Examiner who performed the autopsy testified the cause of death was a gunshot wound to the left posterior upper back. The bullet passed through both lungs and lacerated the aorta. The manner of death was homicide.
South Plainfield Detective James Darby and Middlesex County Prosecutor's Investigator Paul Miller were the lead investigators charged with solving the homicide. During the initial stages of the investigation, Investigator Miller was contacted by Plainfield Patrol Officer Mahasin El-Amin. Officer El-Amin was assigned to a special unit called "Cease-Fire," which investigated shootings, both fatal and non-fatal. On April 14, he had responded to a Newark hospital and spoken with a man who was being treated. The man was Jordan. After speaking with Jordan, Officer El-Amin conducted an investigation to determine whether any shootings had occurred in Plainfield. None had. However, the officer learned a shooting had occurred in South Plainfield. For that reason, he contacted Investigator Miller and gave him Jordan's name. The Investigator later spoke to Jordan and swabbed his check to obtain a DNA sample.
While testifying at trial, after Investigator Miller discussed Jordan's arrest, this exchange between the Investigator and the Prosecutor occurred:
Q. Now, based upon other information that you obtained in this investigation, did you obtain a second arrest warrant?
A. We did, yes.
Q. And who was that arrest warrant for?
A. It was for [defendant].
Q. What was the nature of the warrant? What did the warrant specify the arrest was for?
A. Murder.
Following defendant's arrest in Elizabeth, Investigator Miller and Detective Darby questioned him after first informing him of his Miranda rights, which he waived. He confessed to shooting the victim.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In his video recorded statement to Investigator Miller and Detective Darby, defendant told them it was Jordan's idea to go to the victim's house to get some money. Defendant and Jordan went to the victim's home and Jordan cut the cable wire to the home. Standing by the back door, and listening to what was taking place inside, defendant "heard the guy talkin' that the cable went out and then called the cable people, whatever." When the victim did not come out of his home, defendant and Jordan left, but they returned the next morning around nine o'clock. Defendant, carrying a tool kit, knocked on the door and announced himself as the Comcast cable guy. The victim let defendant in. After entering, defendant walked through the living room to the victim's cable box and pretended to repair it. When Jordan entered the home, the victim pulled out a gun, prompting defendant to pull out his gun.
Defendant then punched the victim and struck him on the head with the gun. The victim and Jordan began "wrestl[ing]" and defendant heard a gun fire two or three times. Defendant fired his gun twice and saw the victim bleeding. After being shot, the victim said he would show defendant and Jordan where he kept the money, but then he "just stopped talkin[g]."
When defendant started looking for money, Jordan said he had been shot. Although he needed help, he did not think he needed immediate medical attention, so he and defendant continued to look through the house. Defendant found the victim's safe in the bedroom closet. He and Jordan left with the safe.
Jordan went to University Hospital. Defendant went to a house where he used a hammer and screwdriver to pry open the safe. The safe contained a white gold bracelet with diamonds; a diamond ring; a diamond chain with a "Gorilla Pimp" medallion; and credit cards. Defendant sold the jewelry in New York and threw the safe in a dumpster near where he sold the jewelry. Defendant would not give the officers specific information about where he discarded the guns.
Defendant presented no witnesses. Following the jury's verdict and defendant's sentencing, defendant filed this appeal.
In the first of his three arguments on appeal, defendant contends his conviction should be vacated because the State did not introduce sufficient evidence to corroborate his confession; and the State's alleged failure was exacerbated both by the prosecutor's misstatement in summation concerning corroboration, and the court's failure to provide an appropriate explanatory instruction. This multi-pronged argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
First, if defendant's first premise — the State failed to offer sufficient corroborative evidence — is accurate, then the prosecutor's closing statement and the court's instructions or lack of instructions have no bearing on the issue. Defendant's premise, however, is inaccurate.
As the Supreme Court has explained,
"[T]o avoid the danger of convicting a defendant solely out of his own mouth of a crime that never occurred or a crime committed by someone else," State v. Johnson, 31 N.J. 489, 502-03 (1960), the State must "introduce independent proofs of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury," State v. Lucas, 30 N.J. 37, 56 (1959). A trial court should properly refuse to grant a judgment of acquittal on these grounds when the State provides "any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy." Id. at 62.Here, there is no dispute of a loss or injury. The victim was shot through the chest and an assistant medical examiner testified that the cause of death was the gunshot wound, the manner of death was homicide.
[State v. Reddish, 181 N.J. 553, 617 (2004).]
In addition, there was abundant independent proof of facts and circumstances strengthening and bolstering defendant's confession, thus, tending to generate a belief in its trustworthiness. The testimony of the Comcast cable repairman, as well as testimony from the friend the victim called when the cable malfunctioned, corroborated defendant's confession about how he gained entry into the house. The forensic evidence corroborated defendant's statements about the participation of Jordan, and the testimony of Officer El-Amin corroborated defendant's statement that Jordan had been shot during the course of the robbery.
The State also introduced into evidence the records of Jordan's hospitalization.
There was more. The victim's brother testified about where defendant kept the safe and identified the jewelry the victim kept in the safe. The brother also identified the jewelry in a photograph of the victim. This evidence corroborated defendant's statement about where he found the safe and what jewelry he found in it. In view of the overwhelming evidence corroborating defendant's statements, defendant's argument is devoid of merit.
Defendant objected to neither the prosecutor's summation nor the jury charge. Consequently, we review defendant's arguments for plain error, that is, error that is clearly capable of producing an unjust result. R. 2:10-2; Reddish, supra, 181 N.J. at 621.
Although a defendant, upon request, is entitled to have the court instruct the jury on the issue of corroboration, the Supreme Court has
noted on several occasions that the failure of the trial court to instruct the jury on corroboration does not rise to plain error where other aspects of the charge addressed the jury's responsibility to assess credibility, and "[t]he entire thrust of the defense" was that the statements at issue were untrue.
[Reddish, supra, 181 N.J. at 621 (alteration in original) (quoting State v. Roach, 14 6 N.J. 208, 229, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)).]
Here, defense counsel did not challenge the court's instructions on the jury's duty concerning assessing the credibility of defendant's confession. Moreover, defense counsel in summation challenged the confession and emphasized the need for corroboration. Our independent review of the trial court's instructions lead us to conclude that the omission to give an instruction on corroboration — not requested by defense counsel - was not plain error.
The prosecutor did misstate the law, telling the jury the State could convict defendant by offering nothing more than defendant's confession. In view of the overwhelming corroborative evidence, however, this isolated statement was not clearly capable of producing an unjust result.
In his second point, defendant argues his right to a fair trial was compromised when the prosecutor asked Investigator Miller if, based on other information obtained during the investigation, a second arrest warrant was issued. Defendant contends the question implied the existence of evidence inculpating defendant, thus violating State v. Bankston, 63 N.J. 263 (1973).
In Bankston, the Court noted "that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" Id. at 268. (quoting McCormick On Evidence § 248, at 587 (2d ed. 1972)). The Court explained that "[s]uch testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid.
The Supreme Court later elaborated on its holding in Bankston:
In contexts other than a photographic identification, the phrase "based on
information received" may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person. The exception would be the defendant who opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive. In such a circumstance, the officer might be permitted to dispel that false impression, despite the invited prejudice the defendant would suffer.
[State v. Branch, 182 N.J. 338, 352 (2005).]
Here, the prosecutor's question violated the Supreme Court's holding in Branch. Investigator Miller's testimony that information had been received to support the issue of an arrest warrant suggested that the Investigator "possesse[d] superior knowledge, outside the record, that incriminates the defendant." Id. at 351. Defendant had not opened the door by flagrantly or falsely suggesting Investigator Miller had "acted arbitrarily or with ill motive." Id. at 352.
Nonetheless, defendant did not object to the prosecutor's question. The investigator did not testify about the substance of the investigation, but merely affirmed the prosecutor's leading question. The investigator's remark was fleeting, and it paled in comparison to the impact of defendant's confession. In view of defendant's failure to object to the question when it was asked, and in view of defendant's detailed confession to police, the videotape of which was played before the jury, we conclude the prosecutor's question and Investigator Miller's answer concerning information leading to defendant's arrest were not clearly capable of producing an unjust result. R. 2:10-2.
In his third and final point, defendant contends his sentence must be vacated because there was no basis to impose consecutive sentences on his hindering apprehension and certain persons not to have weapons convictions. He also argues the trial court failed to provide a sufficient explanation for finding three aggravating factors.
Defendant's argument concerning the aggravating factors requires little discussion. The court found the aggravating factors contained in N.J.S.A. 2C:44-1(a)(3) (risk of re-offense), (6) (extent of defendant's prior criminal record and seriousness of the offenses of which he has been convicted), and (9) (the need for deterring the defendant and others from violating the law). At the inception of the sentencing proceeding, the court found defendant was a repeat violent offender. Defendant did not dispute that finding. The court's finding that defendant was a repeat violent offender supported the court's determination that the aggravating factors in N.J.S.A. 2C:44-1(a)(3), (6) and (9) were applicable.
We reach a different conclusion concerning support for the court's imposition of consecutive sentences for hindering apprehension and certain persons not to have weapons. The New Jersey Code of Criminal Justice provides in N.J.S.A. 2C:44-5(a) that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." To provide trial courts with guidance in determining whether to impose consecutive or concurrent sentences, the Supreme Court has articulated the following criteria:
(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;
(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.
[Yarbough, supra, 100 N.J. at 643-44.]
In 1993, the Legislature amended N.J.S.A. 2C:44-5(a) to provide "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses," thereby eliminating the sixth Yarbough criterion. See L. 1993, c. 223, § 1. --------
In the case before us, the sole reason the court gave for imposing the consecutive sentence on hindering apprehension was the offense occurred after the events of the murder. The court gave no explanation for imposing a consecutive sentence on the certain persons not to have weapons offense.
The court's failure to state any reasons for the consecutive sentence on the weapons offense directly violates the Supreme Court's directive that "reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision." Id. at 643. The judge's singular statement that the hindering offense was "separate and distinct" is an inadequate explanation and application of the Yarbough factors. Hindering apprehension is by its nature a separate and distinct offense from the underlying crime. Accepting the court's analysis would be tantamount to concluding that every defendant who commits the crime of hindering apprehension, regardless of the circumstances, is subject to the imposition of a consecutive sentence without consideration of any other Yarbough factor.
Our decision should not be construed as suggesting that the consecutive sentences are either appropriate or inappropriate. We conclude only that contrary to Yarbough, the trial court gave either an inadequate explanation, or no explanation, for its decision. Accordingly, we vacate the sentences on those two offenses and remand this case to the trial court for resentencing on the hindering apprehension and certain persons not to have weapons crimes.
Affirmed in part, reversed in part, and remanded for further consideration of the sentence on defendant's hindering apprehension and certain persons not to have weapons offenses. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION