Opinion
DOCKET NO. A-5633-09T4
04-30-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID BASS, a/k/a ROBERT HINES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, 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NOT FOR PUBLICATION WITHOUT THE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 Parrillo, Sabatino and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-12-2903.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Tried by a jury, defendant David Bass appeals his conviction of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one); unlawful possession of a handgun, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:58-4 (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1) (count three); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count four); and certain persons not to have weapons, N.J.S.A. 2C:39-7b(1) (count five). Defendant also appeals his extended-term sentence. We affirm.
I.
The State's proofs at trial established the fatal shooting of one victim, Jessica Shabazz, and the wounding of a second gunshot victim, James Sinclair. Defendant acknowledged that he shot and killed Shabazz and wounded Sinclair, but claimed that the shootings were in self-defense. This is the pertinent chronology of events.
A.
On December 19, 2006, at around 5:00 p.m., defendant, who was a former New Jersey resident then living in New York, coincidentally met an old friend, Antoinella "Monique" Johnson at a liquor store in Neptune Township. According to Johnson, after deciding with defendant to get high together, they got in defendant's rented PT Cruiser and he gave her $40 to purchase crack cocaine, which they smoked in the car. Defendant gave her another $40 to buy more crack, which they again smoked in the car.
Johnson then used approximately $300 of defendant's money to buy two "eight balls," a term she used to refer to high-quality crack. They stopped at a retail store, where defendant bought Johnson $100 worth of clothes and toiletries, and purchased for himself a bra, black and red lace panties, a scarf, and pink slippers. They then went to a shoe store where defendant bought Johnson sneakers. They also stopped at a liquor store, where Johnson used defendant's money to buy cigarettes, Cisco (a powerful liquor known as "liquid crack"), gin, beer, and lottery scratch-off cards. Following these purchases, they went to defendant's room at a motel in Neptune Township.
Once at the motel, defendant and Johnson showered separately. Defendant then donned the lingerie and slippers he had purchased. The two of them smoked the crack and drank the alcohol. When they ran out of crack, defendant gave Johnson $100 and the keys to his car, so she could go out and buy more. Johnson drove to Asbury Park to "show off" her new clothes and the car. She returned to the motel two hours later with more crack, which they consumed.
At about 10:00 p.m., defendant asked Johnson if she wanted to bring a friend to the room. Although she was reluctant to do so, she agreed, and left with defendant's car. Johnson went to a friend's house, where she saw "Cadir," (a nickname for Sinclair), and "Starr" (a nickname for Shabazz). Johnson and Shabazz were "rolldogs," meaning persons who get high together.
Johnson and Shabazz returned to the motel room, where Johnson introduced Shabazz to defendant. The three people consumed $80 worth of crack that Johnson had bought along the way. When they ran out of crack, defendant gave Johnson another $200 to purchase more. She left, leaving Shabazz alone with defendant. Johnson eventually returned to the motel, but defendant told her that because she had taken so long, he had sent Shabazz out with $200 for more drugs. Johnson, who was angry about this, went back out to find Shabazz.
Meanwhile, Shabazz and Sinclair took a cab to the motel, where Sinclair intended to make money by selling drugs to defendant. Defendant, who was still dressed in the women's lingerie, let them in the room. Defendant told Shabazz to put on the table what she had gotten for him. Shabazz put cocaine on the table and asked for money. While defendant went into the bathroom with the cocaine, Shabazz told Sinclair that defendant owed her money for having performed a sex act on him with a bottle. The three individuals sat in the motel room for about two hours, during which time Shabazz repeatedly asked defendant for the money, according to Sinclair. Defendant never asked the pair to leave.
After driving around and using more drugs, Johnson returned to the motel room with her stepmother, Linda Bradley. Sinclair let them into the room. Johnson was angry that Sinclair was there, as she did not want to share her money. Meanwhile, Shabazz was yelling at defendant to give her the money he owed her. When Johnson asked about it, Shabazz told her that she had "used a bottle" on him and that he owed her money for it. Defendant said he was not going to pay Shabazz. Everyone present continued to use crack.
According to Johnson, Shabazz eventually said she was going to take defendant's jacket until she got her money. When Shabazz grabbed the jacket and tried to leave, defendant reportedly said, "you're not going [anywhere] with my jacket." Shabazz did not keep the jacket, but she said she would be "crazy as hell" if defendant did not give her the money.
Johnson took the keys to the PT Cruiser, and she and Bradley left the motel at about 2:00 a.m. Johnson claimed that she was worried that Shabazz and Sinclair would rob defendant, and she did not want to be present if trouble ensued, as she was not sure if there was an outstanding warrant for her arrest.
According to Sinclair, after Johnson and Bradley left, defendant gave Shabazz $200. She sat on the bed and said she wanted the rest of the money. Shabazz grabbed defendant's suitcase, which unbeknownst to her, contained over $70,000 in cash. Defendant grabbed the suitcase back. Defendant then aimed a gun at Shabazz and said, "you think this is a fucking game[?]"
Sinclair pushed defendant, and he and Shabazz ran to the sliding glass door. As Sinclair opened it, he pushed Shabazz in front of him, and then was hit in the right pinky finger with a bullet. As Sinclair and Shabazz ran, Sinclair heard Shabazz say, "Cadir, he shot me."
Sinclair's finger was later amputated.
Sinclair continued to run, hearing at least five gunshots. He jumped in the taxi operated by a man he knew who was staying at the motel. The taxi driver happened to be going out to collect a fare, just as "all hell broke out." The driver saw the shooter, whom he described as a "dark-skinned" male, aiming at Sinclair as he was running away. The driver's girlfriend, who was also staying at the motel, looked out the window when she heard gunshots. The girlfriend saw Shabazz take two steps, and then fall to the ground, face-forward.
A Neptune police officer, Thomas Rafi, subsequently found Shabazz in the motel parking lot, face down, with a large bloodstain on her back. Shabazz was pronounced dead at 4:16 a.m. An autopsy determined that the bullet that killed her had entered through her back and exited through her chest, passing through her lung and heart. According to the autopsy, the bullet exited slightly upward from where it had entered, which the State contended at trial is consistent with a person leaning forward or running. An abrasion to Shabazz's face was also found, which the State contended was likewise consistent with a forward collapse. Although cocaine and alcohol were present in Shabazz's blood, the autopsy indicated those substances did not cause her death. Shabazz had two $100 bills in her pants.
Albert DeAngelis, a lieutenant in the Monmouth County Prosecutor's Office, testified for the State as an expert in crime scene analysis, fingerprints, and firearms. From the pattern on Shabazz's jeans and sneakers, DeAngelis concurred with the autopsy finding that Shabazz was bleeding while she was in an upright position, and in motion.
An Ocean Township police officer, Demetrias Kelesidis, also testified for the State. According to Officer Kelesidis, when he heard gunshots, he responded to the area and parked his vehicle across the street from the motel. He observed defendant walking away from the motel across the grass of the neighboring Coca-Cola plant, carrying two suitcases. Kelesidis asked defendant for identification and patted him down. Defendant told Kelesidis that he had been at the motel but left because of the danger. According to Kelesidis, defendant, who was "excited," said that he saw a male and female running away from the scene and that he was "not the guy they were looking for."
Officer Kelesidis asked defendant to return to the motel, and defendant agreed to do so. Kelesidis put defendant's suitcases in the trunk and drove him to the motel, where he turned him over to a Neptune police officer, Richard Blaydes.
Defendant was then placed in the back of a police car, apparently because it was very cold outside. Detective Pamela Ricciardi of the Monmouth County Prosecutor's Office asked defendant what he saw. Defendant told Ricciardi that he had seen a light-skinned male followed by a darker-skinned female running as he heard several shots. With defendant's consent, a police officer then drove him to the Neptune police station. Once at the station, defendant initially maintained his lack of involvement in the shootings.
After Detective Ricciardi started to perceive that defendant was more involved than he was admitting, defendant was read his Miranda rights, and after waiving them, gave two videotaped statements, which were admitted into evidence at trial. In the first statement, defendant said that there was "chaos" in the motel room because Shabazz said he owed her money, and Johnson and Shabazz were "ready to fight." Johnson left, while defendant, Shabazz and Sinclair remained, smoking crack. According to defendant, Shabazz "snatched" money that was on the dresser, and headed for the door. Sinclair then allegedly shot Shabazz. However, when confronted at this point with evidence indicating his own involvement, defendant asked for a lawyer and the interview concluded.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Based on several other factors in the investigation, Detective DeAngelis was asked to photograph defendant. While the two of them were alone, defendant reportedly said, "This shit is bad. I was scared and didn't mean to shoot her." According to DeAngelis, he told defendant to stop talking, but defendant put his head down and reportedly added, "I didn't want to hurt anyone. I shot at him and she got in the way. I just want to see my grandkids again."
Officer DeAngelis alerted Detective Ricciardi that defendant wanted to talk. Defendant was re-advised of his Miranda rights, and the second videotaped interview was conducted. In this interview, defendant admitted to not being truthful in his earlier statements. He acknowledged that he and Shabazz had sexual relations in the motel room. He said he gave her $50 to buy cocaine, but she brought back a small amount, leading him to think she was ripping him off. According to defendant, Sinclair took a wallet containing his money, license, and credit card from his underwear, then grabbed him by the throat and pushed him against the wall. Shabazz then grabbed the gun that was under the mattress, and defendant "tussled" it out of her hands. According to defendant, Shabazz knew the gun was under the mattress because she "read" him as he moved toward it. Sinclair was "going out the door" when defendant shot at him and Shabazz "moved in the way."
Defendant maintained that he did not "mean to shoot [Shabazz]." He admitted shooting her inside the room, then going out into the parking lot area, where both Sinclair and Shabazz had run, and shooting again. He got dressed, left the motel, and walked past the Coca-Cola plant, where he tossed away the gun, which he admitted he had purchased illegally.
Testifying for the State at trial, Sinclair denied that there had been a struggle over the gun. He also denied that he and Shabazz were trying to rob defendant or had possessed a weapon. Sinclair did acknowledge that Shabazz put defendant's billfold, which contained only his identification and his credit cards, into his pocket.
Officer Kelesidis found a .44 magnum caliber Astra revolver in the grass in the area of the Coca-Cola plant in which defendant had been walking. The gun was later tested and determined to be the gun that discharged five bullets found at the motel. Two bullet strikes were found fifteen feet from the sliding glass door of defendant's room. Another bullet was found in the headlamp of a car in the parking lot. There were no bullet strikes or blood in the room. Officer DeAngelis opined that the shots could not have been fired from inside the room.
There was no gunshot residue found on Shabazz's shirt. State Police Detective Sergeant James Ryan, a ballistics expert, tested the revolver used in the shooting and determined that when shot from a distance of eighty-four inches or beyond (i.e., at least seven feet), no gunshot residue was left on the target. Carl Leisinger, a firearms identification and ballistics expert who testified for defendant, noted, however, that the amount of blood at the site of a gunshot wound would affect the ability to detect gunpowder residue.
Deobora Briscoe, a drug addict described as an "acquaintance" of Shabazz's, admitted in her trial testimony that she and Shabazz would typically find a "John," take him to a motel room, get him high, then rob him. According to Briscoe, at about 7:00 p.m. to 8:00 p.m. on December 19, 2006, Shabazz asked her if she wanted to "do a job" with her, but Briscoe declined.
MaryLynn Belunza testified that Shabazz was part of "the A-team," which was a drug gang that used Shabazz to lure "rich white boys with money" so that they could be robbed by the gang.
Defendant did not testify at trial, but he stipulated that he did not have a firearm identification card or a permit to purchase or carry a gun.
B.
The jury found defendant guilty on all counts of the indictment. Defendant moved for a new trial, which the trial court denied. The State moved for an extended term sentence, which the trial court granted.
After merging count three into count one, the trial court sentenced defendant to a thirty-five-year custodial term on count one, with a coextensive thirty-five-year period of parole ineligibility. The court imposed a consecutive twenty-year term on count four, with a seventeen-year period of parole ineligibility. On count five, the court imposed another consecutive sentence of five years in prison, with a coextensive five-year period of parole ineligibility. On count two, the court sentenced defendant to a concurrent five-year sentence, with three years of parole ineligibility. The aggregate custodial term was therefore sixty years with an aggregate fifty-seven-year period of parole ineligibility.
II.
On appeal, defendant presents the following points for our consideration:
POINT 1
THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS DEFENDANT'S ALLEGED STATEMENTS TO POLICE ON MIRANDA AND FIFTH AMENDMENT GROUNDS.
POINT 2
THE SELF-DEFENSE CHARGE WAS DEFICIENT AND PREJUDICED DEFENDANT.
POINT 3
THE TRIAL COURT ERRED IN PERMITTING INTO EVIDENCE GRAPHIC, UNNECESSARY AND UNFAIRLY PREJUDICIAL PROOFS DEPICTING THE VICTIM'S INJURIES.
POINT 4
THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY PERMITTING A STATE EXPERT WITNESS[] TO RELAY HEARSAY TESTIMONY TO THE JURY.
POINT 5
PROSECUTORIAL MISCONDUCT CAUSED AN UNFAIR TRIAL.
POINT 6
THE TRIAL COURT ERRED IN RULING DEFENDANT'S PRIOR CONVICTIONS ADMISSIBLE AGAINST HIM AT TRIAL.
POINT 7
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS INFRINGED BY ALLOWING THE JURY TO SEE VIDEOTAPE OF DEFENDANT INVOKING HIS RIGHT TO COUNSEL DURING INTERROGATION BY POLICE.
POINT 8
DEFENDANT'S RIGHT TO CONFRONT A STATE WITNESS WAS INFRINGED.
POINT 9
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
In addition, defendant has submitted a pro se supplemental brief, containing the following amplified points concerning the prosecutor's summation:
SUPPLEMENTAL POINT 1
THE PROSECUTOR DURING SUMMATION INTENTIONALLY MISSTATED THE LAW TO MISLEAD THE JURY INTO RENDERING AN UNFAIR DECISION, THEREBY IMPINGING ON THE PROVINCE OF THE JURY. THIS DEPRIVED THE DEFENDANT OF HIS SIXTH AND FOURTEENTH AMENDMENT DUE PROCESS RIGHTS AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. 1947, ART. I, PARAS., 1, 10.
SUPPLEMENTAL POINT 2
THE PROSECUTOR'S SUMMATION AND COURT'S FAILURE TO PROVIDE THE JURY WITH A CURATIVE INSTRUCTION DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS ALONG WITH RIGHTS PROTECTED BY THE CONSTITUTION OF NEW JERSEY. THE PROBATIVE VALUE OF PROSECUTOR'S SUMMATION WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. 1947, ART. I, PARAS., 1, 10.
For the reasons that follow, we reject these contentions and sustain defendant's conviction and sentence.
A.
Defendant's first argument is that the trial court violated his constitutional rights against self-incrimination in failing to suppress three of the statements that he made to the police, specifically: (1) his statements to Officer Kelesidis by the Coca-Cola plant, (2) his statements to Officer Blaydes after he was driven back to the motel and stayed in the patrol car, and (3) his initial statements to Detective Ricciardi at the Neptune Township Police Department. Defendant claims that the trial judge erred in admitting these three statements. As a fourth argument, he contends that the two videotaped statements thereafter taken at the police station should have been excluded as the "fruit of the poisonous tree" or under the so-called "cat-out-of-the-bag" doctrine. We disagree.
In Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719, the United States Supreme Court held that in order to protect Fifth Amendment rights against self-incrimination, a person may not be subjected to custodial interrogation by the police unless he is apprised of certain rights. Accord State v. Stas, 212 N.J. 37, 50-53 (2012). In particular, the police must inform such a person:
that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.The Court in Miranda further required that statements made to the police during a custodial interrogation be excluded at trial, unless it is shown that the defendant "knowingly and intelligently waive[d] these rights" in responding to the officers' questions. Ibid. Such a waiver is important because "[a]ny police interview of an individual suspected of a crime has coercive aspects to it." J.D.B. v. North Carolina, 564 U.S. ___, ___, 131 S. Ct. 2394, 2401, 180 L. Ed. 2d 310, 321 (2011) (internal quotations and citation omitted).
[Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.]
The prosecution bears the burden of proving a defendant's voluntary waiver of his right against self-incrimination beyond a reasonable doubt. State v. Presha, 163 N.J. 304, 313 (2000). In making that assessment, our courts must look at the "totality of circumstances" involved. Ibid.; State v. Nyhammer, 197 N.J. 383, 402 (2009). The courts consider such factors as defendant's age, education, and intelligence; the advice given about his constitutional rights; the length of the detention; whether the questioning was repeated or prolonged; and whether physical punishment or mental exhaustion was involved. Presha, supra, 163 N.J. at 313; State v. Dispoto, 189 N.J. 108, 124-25 (2007) (indicating that "fact-based assessments" are appropriate in considering the totality of circumstances and evaluating whether a defendant voluntarily waived his rights).
The procedural safeguards of the Miranda doctrine attach when a criminal suspect is subject to a custodial interrogation. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977). "Custodial interrogation" means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Custody does "not necessitate a formal arrest, nor does it require physical restraint in a police station, nor the application of handcuffs, and may occur in a suspect's home or a public place other than a police station." State v. Godfrey, 131 N.J. Super. 168, 175 (App. Div. 1974), aff'd o.b., 67 N.J. 267 (1975).
The determination of whether a person is in custody is an objective one, independent of "'the subjective views harbored by either the interrogating officers or the person being questioned.'" State v. O'Neal, 190 N.J. 601, 622 (2007) (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994)). Judicial assessment of whether a suspect has been placed in custody is fact-sensitive, and must be considered through a case-by-case approach in which the totality of the circumstances is examined. Ibid.; Godfrey, supra, 131 N.J. Super. at 175-77.
We review the trial court's factual findings from the suppression hearing on defendant's self-incrimination claims under "a deferential standard." Stas, supra, 212 N.J. at 48. Our appellate function, as it relates to the facts, is simply to consider "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964), quoted in Stas, supra, 212 N.J. at 49; see also State v. Locurto, 157 N.J. 463, 471 (1999). We owe "deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161; see also Stas, supra, 212 N.J. at 49. By comparison, "with respect to legal determinations or conclusions reached on the basis of the facts," our review is plenary. Stas, supra, 212 N.J. at 49.
1.
Applying these well-established standards, we first consider the contested admission of defendant's statements to Officer Kelesidis. As we have already noted, according to Kelesidis, after stopping defendant outside the Coca-Cola plant, he asked defendant for identification and patted him down. When asked where he was coming from, defendant identified the motel. Defendant said he left because he did not want to be around the gunfire. He told Kelesidis that from his motel room he saw a male and a female leaving the scene. Kelesidis then drove defendant back to the motel in the police car.
The trial court concluded that the statements defendant made to Officer Kelesidis were admissible, finding that Miranda warnings were not necessary at that point because defendant was not yet in custody. Citing State v. Toro, 22 9 N.J. Super. 215, 219 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), overruled on other grounds, State v. Velez, 119 N.J. 185 (1990), the court found that the questions asked by Kelesidis were "general on-scene questions of someone who is in the area where . . . shots were fired," and therefore, Miranda warnings were not necessary.
On appeal, defendant argues that because he had been detained and questioned at a crime scene, asked to return to the motel, and then put in the back of the police car, he was in custody and thus Miranda warnings were necessary when he spoke with Kelesidis. We reject that argument, substantially for the reasons expressed by the trial judge.
The police are not required to give Miranda warnings before conducting "'[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process.'" Toro, supra, 229 N.J. Super. at 219 (quoting Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725); see also State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (noting that "[t]he rights set forth in Miranda are not implicated 'when the detention and questioning is part of an investigatory procedure rather than a custodial interrogation'") (quoting State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988)), certif. denied, 153 N.J. 216 (1998).
In essence, defendant was observed leaving the area of a very recent shooting and was questioned by Kelesidis as a possible fact witness concerning that shooting. Under the circumstances there was no need for Kelesidis to administer Miranda warnings. A crime scene is not of itself a custodial setting. See State v. Marshall, 148 N.J. 89, 225-26 (1997). Nor is a pat down of an individual necessarily indicative of placement of that individual in custody.
State v. Hall, 253 N.J. Super. 84 (Law Div. 1990), aff'd, 253 N.J. Super. 32 (App. Div. 1991), one of the key cases cited by defendant, does not support his position that a pat down signifies custody. In Hall, the defendant entered a friend's apartment that was being searched pursuant to a search warrant. Id. at 87-88. When the defendant tried to leave, he was stopped and brought back inside the apartment by a detective. Id. at 88. The detective patted down the defendant, and found no weapons or contraband. However, as the detective was patting down the defendant, he asked him if he had "anything" on him. Ibid. The defendant answered "some," and added that it was "only for personal use." Ibid. The defendant pulled a dollar bill from his pocket that contained a small amount of cocaine. Ibid. He was arrested for possession of a controlled dangerous substance. Ibid.
The court found the situation in Hall amounted to a custodial interrogation requiring a Miranda warning because the detective had physically controlled his movements. Id at 89-90. The detective was frisking and asking questions of the defendant at the same time. Id. at 90. Moreover, there were seven other officers present, and the question called for an incriminating answer. Ibid.
This present situation is markedly distinguishable from Hall. Defendant was questioned by one officer, Kelesidis, in a public place, near the scene of shots being fired. Kelesidis asked for identification and asked only where defendant was coming from. That question did not call for an incriminating answer, and it conveyed no belief that defendant was involved in the shooting. Moreover, Kelesidis did not control defendant's movements or prevent him from leaving.
For these reasons, there was sufficient credible evidence to support the judge's finding that during the initial encounter with Kelesidis, defendant was not in custody, and therefore Miranda warnings were not required.
2.
Defendant next raises issues with respect to his statements to Officer Blaydes. The record shows that defendant voluntarily agreed to accompany Kelesidis back to the motel. He rode in the back of the police car. Once at the motel, Kelesidis introduced defendant to Blaydes. Blaydes took defendant's pedigree information, but he did not handcuff him or pat him down. Defendant then got out of the car.
Defendant told Blaydes that, as he was staying in a certain room in the motel, he heard four to five shots outside. Defendant also told Blaydes that he looked out of the window and saw a dark-skinned female and a light-skinned male running through the parking lot. He packed his bags and left. Officer Blaydes then asked defendant to stay to talk to a detective, and defendant agreed. Because it was cold outside, Blaydes asked defendant to wait in the back of the patrol car. Defendant did not object. Defendant was not handcuffed.
The trial judge found that defendant was not in custody when he made his statements to Blaydes, despite sitting in the back of the patrol car. Defendant was not in handcuffs and he was not told he was under arrest. As the judge noted, Blaydes was "just asking basic information" of a witness who had been placed in the back of the police car in order to get out of the cold.
Defendant argues he was not free to leave when he spoke with Blaydes, emphasizing that he was placed in the back of the patrol car, which he contended had locked doors. However, defendant voiced no objection to waiting in the patrol car. By analogy, when a person answers questions voluntarily at the police station, it is not necessarily a "custody" situation. California v. Beheler, 463 U.S. 1121, 1121-25, 103 S. Ct. 3517, 3518-20, 77 L. Ed. 2d 1275, 1277-80 (1983); Marshall, supra, 148 N.J. at 226.
In any event, even if we were to agree with defendant that he was in custody while he was in the parked police car, the judge's ruling that his statements to Blaydes were admissible is of no consequence because they were not presented to the jury. See State v. Macon, 57 N.J. 325, 337-38 (1971) (recognizing that harmless error is to be disregarded on appeal).
3.
Defendant next argues that because his initial statements to Detective Ricciardi were made at the police station, he was in custody and the statements should have been suppressed for lack of Miranda warnings. He argues that this error made his later videotaped statements inadmissible as "fruit of the poisonous tree," or, alternatively, under the "cat-let-out-of-the-bag" doctrine. We disagree.
The record shows that defendant agreed to go to the police station to give a formal statement. Once at the station, defendant claimed that he had come to New Jersey from Rochester, New York in a PT Crusier to visit relatives, but that he missed his exit and wound up at the motel. He checked into his room at 8:00 p.m. He heard shots and saw a male and female running.
When Detective Ricciardi confronted defendant with the fact that the PT Cruiser was not at the motel, defendant admitted he was not being honest and stated that he had really come to New Jersey because he was having marital problems and he had met up with a female acquaintance. Defendant then admitted that he and the woman (Johnson, whom he called "Liz") bought cocaine, liquor and clothes, then used the cocaine in the motel room. Defendant gave "Liz" the keys to the car and she went out to purchase more cocaine. While "Liz" was still out, he heard shots. When Ricciardi learned from other detectives that defendant's motel room was in disarray and asked him why, defendant said that he was a messy person. He declined consent to a search of the motel room.
Sometime between 7:15 a.m. and 8:00 a.m., after the initial interview was over and while they were waiting for a secretary to arrive to take defendant's formal statement, Ricciardi noticed a red stain on defendant's pants. When asked about it, defendant offered to let the police take his pants. At that point, Ricciardi informed defendant that he was not free to leave. Meanwhile, Ricciardi and the other investigators continued to interview other witnesses and receive further information.
Defendant had no further conversations with the police until 5:00 p.m., when defendant gave his first videotaped interview. Miranda warnings were duly read and defendant waived his rights before the interview began. As we have previously noted, he denied involvement in the shootings in his first video interview and blamed Sinclair. The interview came to a close when defendant requested an attorney.
Defendant was then taken for photographs by DeAngelis, and made additional unsolicited statements. A second videotaped statement, taken after Miranda rights were re-administered and waived, was then begun at 7:00 p.m.
The trial judge found defendant's initial statements to Ricciardi admissible, finding that defendant had given the detective only general information. However, the judge did suppress the portion of defendant's statement that occurred after he was asked the whereabouts of the PT Cruiser, when he then admitted that he had lied. At that point, as the judge analyzed it, defendant went from being a mere witness to a suspect, making Miranda warnings necessary.
The judge also admitted the two subsequent videotaped statements, finding that the lack of Miranda warnings (in which defendant's status converted from witness to suspect) did not "taint" the first videotaped statement. The first videotaped statement was taken eight hours later, after Miranda rights were given and defendant had waived them without coercion from the officers. The second videotaped statement was also given after Miranda warnings were given and defendant's rights were properly waived.
Defendant refers to "statement five," which, according to the judge's ruling, was the statement to Ricciardi in which he admitted that he lied. However, his appellate brief states that this particular statement "was obtained by police without further Miranda warnings and despite defendant's prior invocation of the right to counsel." That is factually incorrect. Defendant did invoke his right to counsel at the police station, but that invocation occurred later during the first videotaped statement which took place after defendant was advised of his Miranda rights.
Defendant contends that he was in custody at the police station when Ricciardi first questioned him, and therefore those statements should be suppressed. However, as the court reasonably found, defendant was still being treated by the police at that point as a general fact witness and being asked general questions. Hence, the court's admission of defendant's general responses to Ricciardi was adequately supported by the evidence.
4.
Defendant maintains that the trial court should have suppressed the two videotaped interviews under the respective doctrines of the "fruit of the poisonous tree" or the "cat-out-of-the-bag." We disagree.
Our Supreme Court has described these related doctrines as follows:
The fruit-of-the-poisonous—tree doctrine denies the prosecution the use of derivative evidence obtained as a result of a Fourth or Fifth Amendment violation. United States v. Patane, 542 U.S. 630, 642-44, 124 S. Ct. 2620, 2630, 159 L. Ed. 2d 667, 678-79 (2004); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). In United States v. Bayer, 331 U.S. 532, 67 S. Ct. 1394, 91 L. Ed. 1654 (1947), the U.S. Supreme Court explained the cat-out-of-the-bag doctrine in the following way:
"[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first."
[Id at 540-51, 67 S. Ct. at 1398, 91 L. Ed. at 1660.]
However, the Court did note that "it has never gone so far as to hold that making a confession
under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed." Ibid.[State v. O'Neill, 193 N.J. 148, 171 n.13 (2007) (emphasis added).]
In O'Neill, the Court addressed whether the two-step "question first, warn later" interrogation technique, one which may result in letting the "cat out of the bag," violates a defendant's state-law privilege against self-incrimination. The Court observed that the "question-first, warn-later" interrogation "is a technique devised to undermine both the efficacy of Miranda and our state law privilege." Id. at 180. The Court then considered whether "the belated giving of the Miranda rights to a suspect will serve as a firewall between the warned and unwarned statements." Ibid.
The Court determined in O'Neill that there is no such impenetrable "firewall" between warned and unwarned statements. See id. at 180-81. Instead, the Court set forth various standards to determine when a subsequent warned statement is admissible:
[W]e hold that when Miranda warnings are given after a custodial interrogation has already produced incriminating statements, the admissibility of post-warning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege
against self-incrimination. In making that determination, courts should consider all relevant factors, including: (1) the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights; (2) the proximity in time and place between the pre-and post-warning questioning; (3) whether the same law enforcement officers conducted both the unwarned and warned interrogations; (4) whether the officers informed defendant that his pre-warning statements could not be used against him; and (5) the degree to which the post-warning questioning is a continuation of the pre-warning questioning. The factual circumstances in each case will determine the appropriate weight to be accorded to any factor or group of factors.
[Ibid. (emphasis added).]
Here, as to the second and third factors listed above, defendant argues that neither the place of interrogation, nor the identity of the interrogators, changed between his unwarned, statements to the police, and his subsequent warned statements on videotape. Although that much is true, several of the other factors prescribed by O'Neill strongly tip the balance of factors in favor of admitting the subsequent statements.
First, the Court's repudiation in O'Neill of the "question-first, warn-later" approach was "due in part to the risk that, because the defendant has already made incriminating statements, he will not actually hear or comprehend the warnings, or will eventually confess based on a belief that he is merely repeating what has already been said." State v. Yohnnson, 204 N.J. 43, 61 (2010).
Here, defendant's initial statement, while indicative of criminal behavior regarding the use and purchase of drugs, was not incriminatory regarding the shooting of the victim. See ibid. (noting that "vaguely incriminating" statements regarding drug use were irrelevant to the robbery being investigated and did not let the cat out of the bag). Defendant did not commit himself in his pre-warning conversations to an incriminating story. Moreover, to the extent that defendant's statements placed him at the crime scene, that fact was already known by investigators, as a police officer had observed defendant walking away from the scene, and the motel desk clerk had confirmed his stay.
Second, "if the officers' pre-warning questioning is brief and the defendant's admissions are not incriminating or are barely incriminating and if there is a substantial break in time and circumstances between the pre-[warning] and post-warning interrogations, then those factors would militate against suppression of the defendant's statement." O'Neill, supra, 193 N.J. at 181. Here, the warned interrogation of defendant took place nine to ten hours after the unwarned statement was given. That was a significant break in time, and not merely a continuation of the pre-warning questioning.
"Another circumstance that may be considered is the defendant's prior experience with the criminal justice system." Ibid. Defendant had many arrests dating back to 1970. He thus had considerable experience in dealing with police, which would lessen the likelihood that he felt coerced. See State v. Knight, 183 N.J. 449, 467-68 (2005) (noting that two prior convictions showed that the defendant was familiar with the criminal justice system and favored admission of statement).
Considering the totality of the circumstances, the record reasonably supports the trial judge's finding that defendant's unwarned statements to the police did not impermissibly taint his later warned statements. Hence, his videotaped statements were properly admitted.
In sum, we sustain the trial court's rejection of defendant's self-incrimination claims, as well as the trial court's ruling substantially denying defendant's motion to suppress his statements.
B.
During the charge conference, defendant's trial attorney asked the judge to issue the model charge for the use of force upon an intruder, pursuant to N.J.S.A. 2C:3-4c. The judge declined to do so.
The requested charge, in pertinent part, explains that the law allows a person to use force "upon or toward an intruder who is unlawfully in a dwelling when the defendant reasonably believes that the force is immediately necessary for the purpose of protecting [himself] or other person(s) in the dwelling against the use of unlawful force by the intruder." Model Jury Charge (Criminal), "Justification Use of Force Upon An Intruder" (1991). For the force used to be justified, two conditions must exist:
1. The other person (victim) was an intruder who was unlawfully in a dwelling. An intruder is one who is unlawfully in the dwelling—that is, (he/she) was not licensed or privileged to be in the dwelling. The term "dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is used as a person's home or place of lodging.
2. The defendant reasonably believed that force (deadly force) was immediately necessary for the purpose of protecting (himself/herself) or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.
[Ibid.]
In declining to issue this charge, the judge determined that there was no dispute about the fact that Shabazz and Sinclair were in the motel room with defendant's permission. Shabazz was apparently there for defendant's sexual pleasure and Sinclair apparently was there to provide drugs. Consequently, the judge found no necessity to give the "intruder" charge. We agree.
In support of his argument that the omitted intruder charge was essential to his self-defense, defendant principally relies upon State v. Bilek, 308 N.J. Super. 1 (App. Div. 1998), and State v. Felton, 180 N.J. Super. 361 (App. Div. 1981). Neither case is factually comparable to the present case.
In Bilek, the intruder charge was warranted in a case where an angry tenant and his son had confronted the defendant, the apartment superintendent, at his apartment, after the defendant had used profane language towards the tenant's wife. Bilek, supra, 308 N.J. Super. at 5-6. Defendant went into his bedroom and retrieved a gun. Id. at 6. He pointed it at the two men, who immediately fled. Ibid. We held in Bilek that, given the "heated confrontation . . . between the uninvited [men] and defendant," the intruder charge should have been given to the jury. Id. at 13-14. Here, neither Shabazz nor Sinclair were intruders. Instead, they were present with defendant's permission, at least initially.
Felton likewise is not on point. In that case, the father of a child arrived, unannounced, at the home of the child's mother. Supra, 180 N.J. Super. at 363. He was admitted upon giving his name. Ibid. The father asked if he could take the child out, and an argument ensued between the parents. Ibid. The mother's boyfriend then left to call the police, during which time the mother stabbed the father. Ibid.
In instructing the jury on the applicable self-defense principles, the trial judge in Felton advised the jury that "[t]he word 'intruder' would exclude someone present on the premises by invitation or with permission." Id. at 364. The court did not determine whether the defendant was on the premises with permission, but left that particular factual determination up to the jury. Id. at 363. We reversed Felton's conviction because the judge had erroneously subjected the defendant to a duty to retreat if the victim was not an intruder but was entitled to be on the premises. Id. at 365. However, we did not repudiate the judge's definition of an intruder as excluding a person who had been let into the premises by invitation or consent.
In sum, the intruder charge was unnecessary on the facts of this case. We reject defendant's claim that the alleged transformation of Shabazz and Sinclair from invited guests into so-called "intruders" required the jury charge.
C.
In his third point, defendant argues that the judge erred in permitting into evidence certain graphic photographs of Shabazz, and displaying her bloody clothes. Defense counsel had objected to the admission of photographs of Shabazz taken at the autopsy, arguing that because defendant had acknowledged the shooting, here was no need to admit them. He similarly objected to the victim's clothing being shown to the jury.
The judge conducted N.J.R.E. 104 hearings to address these admissibility issues. After reviewing those items, the judge allowed certain photographs (marked as exhibits three through eleven, and thirteen). According to the judge, these photos showed a "progression" of the entrance and exit wounds of Shabazz, without showing her face. The judge reasoned that the location of the entrance and exit wounds, were "clearly" important to the State's case. The judge admitted the victim's clothing for similar reasons. The judge also permitted three photographs depicting Shabazz's hands, as those photos were relevant to the self-defense claims. He further allowed two photographs showing wounds to the left side of Shabazz's face where it hit the ground. The judge found these photos relevant to where Shabazz was shot (i.e., either the motel room or in the parking lot). The photos also were relevant to the self-defense claim. The judge excluded seven other photographs as irrelevant.
We generally afford substantial deference on appeal to a trial court's evidentiary rulings. State v. Ramseur, 106 N.J. 123, 266 (1987). Indeed, "[c]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998). Defendant has failed to demonstrate such an abuse of discretion occurred here with respect to the trial court's selective admission of some of the victim's photographs as well as her bloody clothing.
We are mindful that the presentation to a jury of photographs of a victim in a homicide case can raise concerns of potential prejudice. See N.J.R.E. 403. In order to be admissible, such photographs must be "logically relevant" to an issue in the case. State v. Johnson, 120 N.J. 263, 297 (1990) (quoting State v. Bey II, 112 N.J. 123, 182 (1988)). Even so, the prosecution may not "'use at will any and all pictures at a murder trial as long as they possess[] some relevancy.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 53 (1958)).
The pivotal question thus becomes whether the probative value of such photographs or similar graphic evidence was "substantially outweighed" by the risk of undue prejudice or other countervailing factors recognized by Rule 403. There is no categorical rule requiring exclusion of all such photographs. Indeed, as the Supreme Court has observed:
Pictures of a murdered body are likely to cause some emotional stirring in any case, but that of itself does not render them incompetent. They become inadmissible only when their probative value is so significantly outweighed by their inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence.
[State v. Thompson, 59 N.J. 396, 421 (1971).]
Defendant contends that the admission of the photographs and bloody clothing of Shabazz was unfairly prejudicial to him because the severity of the fatal injuries that she suffered was not disputed, and was only minimally probative of his guilt. This argument misses the point. None of the photographs, nor the clothing, were admitted to show the severity of Shabazz's injuries. Instead, they were highly probative and responsive to defendant's claim that he had shot Shabazz in self-defense. That defense would be considerably weakened if the State were allowed to prove that the victim was shot in the back, from a distance, as she was running away from defendant. In fact, defendant contested the distance from which Shabazz was shot.
The photographs of the entrance and exit wounds and the display of the clothing, therefore, materially substantiated the testimony of the State's witnesses as to the bullet entry and exit points. The proofs also bore upon the distance from which the shots were fired. The photographs of the position of Shabazz's body, the marks on her cheek, and the lack of defensive wounds on her hands all were probative and responsive to counteract defendant's self-defense claim.
Given these circumstances, we discern no reason to disturb the trial judge's thorough consideration of this issue. We thus conclude that the judge did not abuse his discretion in admitting the photographs and Shabazz's clothing.
D.
Defendant next argues that the trial court violated his constitutional right to confrontation when an assistant medical examiner discussed in his trial testimony the findings of an autopsy that had been performed by a now-deceased medical examiner. The State maintains that the testifying witness's expert opinions were based upon his own review of the evidence, and, to the extent they arguably were not, the admission of those opinions was harmless because they involved uncontested facts.
These are the pertinent circumstances relating to this issue. The County Medical Examiner, Dr. Jay Peacock, performed the autopsy of Shabazz. Dr. Peacock also prepared the written autopsy reports. He died prior to trial.
Assistant Medical Examiner, Dr. Frederick DiCarlo, who was not present at the autopsy, thereafter reviewed the autopsy photographs and Dr. Peacock's reports. Dr. DiCarlo also visited the crime scene, and observed Shabazz's clothing. Based on his review of the evidence, Dr. DiCarlo issued his own report, concluding that he concurred with Dr. Peacock's findings. At trial, Dr. DiCarlo testified for the State that he concurred with Dr. Peacock's conclusions as to the cause and manner of Shabazz's death.
Defendant objected to Dr. DiCarlo's testifying about Dr. Peacock's findings because Dr. Peacock was not available for cross-examination. The judge overruled that objection, concluding that it was "just like when you have a civil case, when you have a doctor that's reviewing another doctor's report," and permitted the testimony. Dr. Peacock's autopsy report was not admitted into evidence, so his findings were only made known to the jury indirectly through the expert testimony of Dr. DiCarlo.
On appeal, defendant argues that when the State uses a document "created for the purpose of establishing an essential element of the offense charged against him," an accused has the right to confront the witness who authored the report. Based upon this premise, defendant contends that the autopsy report and statements of Dr. Peacock contained within Dr. DiCarlo's report formed part of the State's case against him, which he was unable to test through a cross-examination of the now-deceased Dr. Peacock. Defendant also complains that Dr. DiCarlo's testimony "relied in large part on the out-of-court statements by Dr. Peacock [e]mbedded in the autopsy report." The Confrontation Clause, he asserts, should have "barred the substance of the autopsy report" from being relayed to the jury through Dr. DiCarlo's testimony.
The Confrontation Clause contained in the Sixth Amendment, which applies to the states by way of the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; State v. Rehmann, 419 N.J. Super. 451, 454 (App. Div. 2011). In Crawford v. Washington, 541 U.S. 36, 59-60 n.9, 124 S. Ct. 1354, 1369 n.9, 158 L. Ed. 2d 177, 197 n.9 (2004), the United States Supreme Court held that the Confrontation Clause bars the admission of "[t]estimonial statements of witnesses absent from trial" admitted to prove the truth of the matter asserted, except "where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Since that seminal opinion in Crawford in 2004, the United States Supreme Court has considered several cases in which those principles have been applied to the context of forensic reports prepared before trial.
The United States Supreme Court first applied Crawford to a situation of forensic reports in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). In that case, police seized certain items from the suspects. Id. at 308, 129 S. Ct. at 2530, 174 L. Ed. 2d at 319-20. The items were tested at a laboratory, and deemed to contain cocaine. Id. at 308, 129 S. Ct. at 2530-31, 174 L. Ed. 2d at 320. At trial, the police placed into evidence three "certificates of analysis" showing the results of the forensic analysis performed on the seized substances, shown to be cocaine. Ibid. The certificates were sworn to before a notary public by analysts at the state laboratory where the tests had been performed. Id. at 308, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320. The defendant objected to the admission of the certificates, claiming that they violated his right to confront witnesses against him, as expressed in Crawford. Id. at 309, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320.
The Supreme Court majority agreed with defendant in Melendez-Diaz, finding that there was little doubt that the documents at issue in this case fall within the "core class of testimonial statements" described in Crawford because the certificates were "affidavits." Id. at 310, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. The Court held that the certificates were "functionally identical to live, in-court testimony." Id. at 310-11, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. The Court concluded in Melendez-Diaz that unless the analysts were unavailable to testify at trial and defendant had a prior opportunity to cross-examine them, defendant was entitled to confront the analysts at trial. Id. at 311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322.
Subsequently, in Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), the United States Supreme Court clarified the contours of Melendez-Diaz. In Bullcoming, the defendant was arrested on charges of driving while intoxicated. Id. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 615-16. The main evidence against him was a forensic laboratory report certifying that his blood-alcohol concentration was above the legal threshold. Id. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 616. At trial, the prosecution did not call as a witness the analyst who signed the certification. Ibid. Rather, it called another analyst who was familiar with the laboratory's testing procedures, but who had not "participated in nor observed the test on Bullcoming's blood sample." Ibid.
A majority of the justices held in Bullcoming that the "surrogate testimony" of a person who did not "sign the certification or perform or observe the test" did not satisfy the constitutional right of confrontation. Id. at ___, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. As the majority noted, "[t]he accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Id. at ___, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616.
Notably, the reversal of Bullcoming's conviction was approved by only five of the nine members of the Court. Id. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 615. The dissenting members would have sustained Bullcoming's conviction. Id. at ___, 131 S. Ct. at 2723, 180 L. Ed. 2d at 630. In her concurrence, Justice Sotomayor stressed the "limited reach" of the majority's holding. Id. at ___, 131 S. Ct. at 2719, 180 L. Ed. 2d at 626 (Sotomayor, J., concurring). Specifically, she observed that the Court had not resolved several issues, including whether the defendant's right of confrontation would have been satisfied "if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results." Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629 (Sotomayor, J., concurring). Justice Sotomayor also noted that the situation in Bullcoming was not one "in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629 (Sotomayor, J., concurring).
Last year, the Supreme Court again revisited these developing confrontation issues in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012). Williams involved a rape prosecution. The court considered whether the prosecution in that case could present expert testimony from a State Police forensic scientist, who had opined that the defendant's DNA matched DNA previously taken from a vaginal swab of the rape victim that had been analyzed by a private laboratory. Id. at ___, 132 S. Ct. at 2227, 183 L. Ed. 2d at 98. The analyst from the private laboratory did not testify at trial, and the State did not move the laboratory report into evidence. Ibid.
Under these circumstances in Williams, Justice Alito and three other members of the Court ruled that the defendant's confrontation rights had not been violated by the admission of the forensic scientist's expert testimony, even though she had considered and relied upon the private laboratory's DNA analysis of the vaginal swab. Id. at ___, 132 S. Ct. at 2227-28, 183 L. Ed. 2d at 98-99. Those four justices reasoned that the testifying forensic scientist was permitted, as an expert witness, to rely upon "facts or data" that were not in evidence. Id. at ___, 132 S. Ct. at 2228, 183 L. Ed. 2d at 98-99; see also Fed. R. Evid. 703. "Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause." Id. at ___, 132 S. Ct. at 2228, 183 L. Ed. 2d at 99. Consequently, Justice Alito, and the other three justices who joined his opinion, concluded that the defendant's conviction in Williams should be sustained. Ibid. Justice Breyer issued a concurring opinion, agreeing with Justice Alito's rationale for admitting the expert testimony. Id. at ___, 132 S. Ct. at 2244-45, 183 L. Ed. 2d at 117 (Breyer, J., concurring).
Justice Thomas wrote a concurring opinion in Williams, in which he agreed, albeit for entirely different reasons, with the Court's ultimate conclusion that the defendant's confrontation rights had not been violated. Id. at ___, 132 S. Ct. at 2255, 183 L. Ed. 2d at 129 (Thomas, J., concurring). Justice Thomas reasoned that the non-testifying analyst's laboratory report lacked the requisite "formality" and "solemnity" to be considered "testimonial" for purposes of the Confrontation Clause. Ibid. Although no other member of the Court adopted Justice Thomas's approach, his conclusion of admissibility represents the fifth and decisive vote in Williams. Justice Kagan and three other members of the court issued a dissenting opinion. Id. at ___, 132 S. Ct. at 2264-65, 183 L. Ed. 2d at 138-39 (Kagan, J., dissenting). They concluded that the testifying expert could not divulge to the jury the private laboratory's findings, without providing defense counsel an opportunity to cross-examine that private analyst. Ibid.
It is obvious that the United States Supreme Court's jurisprudence on these confrontation issues, in the aftermath of Melendez-Diaz, Bullcoming, and Williams, has been in a state of considerable flux. As Justice Kagan aptly noted in her dissenting opinion in Williams, there is "significant confusion" in the wake of these holdings, and "no proposed limitation [upon the holdings of Melendez-Diaz and Bullcoming] commands the support of a majority." Id. at ___, 132 S. Ct. at 2277, 183 L. Ed. 2d at 153.
Despite this confusion about the precise status of the controlling principles of constitutional law espoused by our nation's highest court, this much is clear and relevant for our purposes. Five votes in Williams held that the testimony of the State's forensic expert, and her references to the out-of-court private laboratory analysis, were constitutionally admissible. Hence, applying principles of stare decisis, that same outcome must be reached in equivalent cases. See State v. Shannon, 210 N.J. 225, 226 (2012) ("Stare decisis is a principle to which we adhere for the sake of certainty and stability.").
Indeed, several other courts have interpreted and applied Williams in the same manner, essentially treating the "next case in line" the same way as in Williams. See, e.g., People v. Leach, 980 N.E. 2d 570 (Ill. 2012) (applying Williams and finding no Confrontation Clause violation where a testifying expert had relied upon and quoted from the autopsy report of a non-testifying coroner, because the testifying expert had independently reached her own conclusions); People v. Westmoreland, 213 Cal. App. 4th 602 (Cal. Ct. App.) (applying Williams and allowing an expert pathologist, who had not been present at the autopsy, to express his opinion to the jury as to the cause of death, and to express agreement with the non-testifying coroner's earlier conclusion regarding the victim's cause of death), modified and reh'g denied, 2013 Cal. App. LEXIS 160 (Cal. Ct. App. 2013).
We do not reach the controversial question of whether an autopsy report, by its very nature, is "testimonial" for purposes of Crawford analysis. Compare United States v. James, ___ F.3d ___ (2d Cir. 2013) (holding that autopsy reports are not testimonial if their primary purpose is not to create a record for use at a criminal trial) with State v. Kennedy, 735 S.E. 2d 905, 917 (W. Va. 2012) (treating all autopsy reports as testimonial).
We are similarly mindful that our own state's approach to these confrontation issues, as we endeavor to interpret and apply the United States Supreme Court's evolving precedents, is also evolving. In Rehmann, supra, a case decided prior to the Supreme Court's opinions in Bullcoming and Williams, we considered whether a defendant's right of confrontation had been violated "when the State, in attempting to prove his blood alcohol content, relied upon the testimony of an expert who supervised but did not actually perform the test on defendant's blood sample." 419 N.J. Super. at 453. The testifying witness's "supervision" in that case included observation of the other scientists performing the test. Id. at 458-59. The testifying witness had signed the laboratory report, certifying the accuracy of the test. Id. at 458.
We held in Rehmann that a "straw man" witness cannot testify to the report of another. Id. at 457. Instead, the State "must provide a witness who has made an independent determination as to the results offered." Ibid. Because the non-certifying witness was with the actual analyst "every step of the way," we concluded that his testimony about the report did not violate the Confrontation Clause. Id. at 458-59.
Here, the question is not the extent to which Dr. DiCarlo "supervised" or "participated" in Dr. Peacock's work, as it was in Bullcoming or Rehmann, because Dr. DiCarlo had no part in the original autopsy. However, he independently reviewed the evidence, including Dr. Peacock's findings, to reach his own conclusions. Applying the rationale of Justice Alito's opinion in Williams, Dr. Peacock's findings were permissibly referred to by a testifying expert under N.J.R.E. 703, which states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
[N.J.R.E. 703 (emphasis added).]
Although a rule of evidence cannot trump the constitution, the reliance upon the federal version of Evidence Rule 703 by four justices of the United States Supreme Court in Williams supports the State's position here that Dr. DiCarlo's expert testimony did not transgress the boundaries of confrontation law. Nor was Dr. Peacock's prior written autopsy report, which Dr. DiCarlo independently considered, sufficiently "formalized" to be considered "testimonial" under the test expressed in Justice Thomas's concurring opinion in Williams.
Hence, as best as we can interpolate the evolving law at present, we conclude that the trial court did not violate defendant's constitutional rights by overruling his counsel's objection to Dr. DiCarlo's expert testimony alluding to Dr. Peacock's autopsy findings, particularly since Dr. Peacock's report was not itself moved into evidence. The testimony was constitutionally permitted.
That said, we are mindful that the New Jersey Supreme Court has granted certification in two cases that may resolve the approach that should be taken on such confrontation issues arising in this state. See State v. Williams, 212 N.J. 103 (2012) (granting certification in a case raising whether the admission of expert testimony by a pathologist who also relied on the work of a different medical examiner violated the Confrontation Clause); see also State v. Roach, 211 N.J. 607 (2012) (granting certification in a case raising whether a defendant's right of confrontation was violated when the State's DNA expert testified to results obtained by another forensic scientist who did not testify). No argument date has been set in either pending case.
E.
Defendant contends, in his counsel's brief and also in his supplemental pro se brief, that the prosecutor engaged in misconduct in summation that caused an unfair trial. We reject that assertion.
During the summation, the prosecutor gave a PowerPoint presentation, during which a photograph of the defendant, which was admitted in evidence, was displayed. The word "guilty" was "flashed" across the photograph for "a couple of seconds." Defense counsel did not object at the time, but did so the next day, and requested a mistrial.
The judge initially thought that "we shouldn't have seen it," and indicated that he would give a curative charge. However, upon reviewing the case law, the judge found that there was no prosecutorial misconduct and declined to give any curative instruction.
In State v. Frost, 158 N.J. 76, 82-83 (1999), the Supreme Court explored the boundaries of permissible summation by a prosecutor, as follows:
Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries. . . . Nevertheless, "the primary duty of a prosecutor is not toProsecutorial misconduct arising from remarks during summation is a ground for reversal only where the prosecutor's misconduct was "so egregious that it deprived the defendant of a fair trial." Id. at 83. The fleeting display of the word "guilty" here did not transgress this standard of egregiousness.
obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987).
[(Citations omitted).]
In determining that the prosecutor's display was not misconduct, the trial judge relied upon State v. Michaels, 264 N.J. Super. 579, 641 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). During summation in Michaels, the prosecutor arranged the letters spelling "guilty" in a puzzle-like fashion on a magnetic board, where that wording remained on display throughout his summation, despite the defendant's objection. Id. at 641. This court held that it was not improper to place the "guilty" letters on the board, as "[t]he State was free to contend that the evidence proved defendant guilty as charged." Ibid.
Defendant argues that, notwithstanding Michaels, the practice in question "violates the rule precluding a prosecutor from expressing a personal belief in the guilt of a defendant." However, the prosecutor did not say anything about his personal belief. He was instead arguing that the evidence adduced at trial supported a guilty verdict. Based on Michaels, the judge had an authorized basis to find a lack of prosecutorial misconduct in these circumstances, although we do not necessarily endorse the PowerPoint display that was utilized in this case. The display was fleeting and was not "clearly capable of producing an unjust result." R. 2:10-1.
F.
Defendant contends that because many of his prior convictions were remote, the court deprived him of a fair trial in ruling that they would be admissible against him under N.J.R.E. 609 as impeachment evidence if he chose to take the stand. We disagree.
The decision to admit into evidence a prior conviction for impeachment purposes rests within the sound discretion of the trial court. State v. Sands, 76 N.J. 127, 144-45 (1978); see also State v. Harris, 209 N.J. 431, 439 (2012); State v. Hamilton, 193 N.J. 255, 256-57 (2008). An appellate court should not reverse except for an abuse of discretion reflecting "a clear error of judgment." Harris, supra, 209 N.J. at 439 (internal quotations and citations omitted). No such abuse occurred here.
Prior to trial, the judge held a Sands/Brunson hearing to determine the admissibility of defendant's prior convictions for impeachment purposes. The judge reviewed defendant's criminal record beginning with his first arrest in 1971 through his arrest for these crimes in 2006. The judge found that "there have been charges all the way throughout."
Sands, supra, 76 N.J. at 144-45; State v. Brunson, 132 N.J. 377, 391 (1993).
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[B]ased on that thread of convictions from '71 to present, . . . it would be arbitrary for me to just pick a date, to say, all right, we're not considering anything before the '70s or before the '80s . . . . I don't think that based on the number of convictions we're talking about here, not only convictions, but kind of everything strings together from convictions, time served in jail, violations of probation, that there has not been any real break of time over that period from the '70s to 2006.
The Supreme Court gave guidance regarding the consideration of remoteness in Sands:
The key to exclusion is remoteness. Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time
and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.
[Sands, supra, 76 N.J. at 144-45 (emphasis added).]
The Court recently reaffirmed these principles in Harris, supra, in concluding that the defendant's two criminal convictions for drug possession more than ten years prior to his trial were not too remote to be admitted under N.J.R.E. 609 to impeach his credibility. 209 N.J. at 444-45. The Court found it significant to the remoteness analysis that the defendant had been convicted of several disorderly persons offenses during the intervening period, and they served to "bridge the gap" between the older convictions and the defendant's present prosecution. Ibid.
Here, defendant's long criminal record began in 1970 with a shoplifting charge. In 1971, he was convicted of possessing stolen property, and on a second occasion, receiving stolen property and drug offenses. In 1972, he was arrested on four separate occasions, and was found guilty of shoplifting, robbery, and committing a crime while armed. He was paroled in September 1976, and by December 1976, he was arrested again and ultimately found guilty of possession of a firearm without a permit. In 1977, he was convicted of escape, robbery, committing a crime while armed, and entering without breaking with intent to rob, for which he was sentenced to twenty years in prison. He was paroled, but in 1986, he was found guilty of possession of a controlled dangerous substance and returned to prison. In 1991, he was found guilty of a drug offense and was paroled in 1992, but two weeks later, committed a parole violation and was returned to prison. In 1994, he was convicted of more drug offenses and he remained in prison until September 1997. In 2001, defendant was found guilty of shoplifting, theft by taking, and drug offenses and was in prison until the end of 2003. These offenses took place in 2006.
Defendant's manifestly extensive criminal history supports the trial judge's finding that there were no "significant break[s]" in arrests over the years to allow the conclusion that there was a "natural break" and a period of law-abiding behavior. The judge rightly concluded that defendant's arrest record indicated "contempt for the bounds of behavior placed on all citizens," which supported his conclusion that his entire offense history could be admitted for impeachment purposes. We thus discern no abuse of discretion in the trial court's application of Rule 609, and its rejection of defendant's remoteness arguments.
G.
Defendant argues that his right to a fair trial was infringed by allowing the jury to see a videotape of him invoking his right to counsel. The State maintains that the judge did not abuse his discretion in allowing that video, and that, even if he did, the error was harmless because defendant was not prejudiced. We agree with the State's position.
As we have already noted, in the first videotaped interview, defendant maintained his innocence, claiming that Sinclair had shot Shabazz. When he was told that there was a videotape of him discarding a gun at the Coca-Cola plant and that police were accusing him of being the shooter, defendant requested an attorney and the questioning ceased. Shortly thereafter, when defendant was being photographed, he made unsolicited incriminatory statements, and said that he wanted to resume talking to police. A second videotaped statement was then taken, in which defendant admitted to being the shooter. Both of the interviews were played for the jury. Over defendant's objection, the first interview contained defendant's request for counsel.
The trial judge ruled that allowing the jury to see defendant invoke his right to counsel was not prejudicial because, if the reason for stopping the interview had not been revealed, "the jury would clearly speculate at that point if that middle piece of information [was] not given." Rather than redact the interview, the judge issued a cautionary instruction at the time the tape was stopped, saying as follows:
I just want to give you an instruction why the tape was stopped at that point. Detective Ricciardi . . . said, I believe you do want to stop the tape and . . . get your own attorney and at that point, Mr. Bass, basically what I heard on the tape, indicated, yes.
An individual may decline to speak with police for many reasons. A defendant's invocation of his right to counsel or remain silent may not in any way be used to infer guilt. Now, as you heard in the beginning when Prosecutor Schweers went through with Detective Ricciardi the Miranda warning that was given and you heard it on the tape,
question number 3 . . says, you have the right to [consult] with an attorney at any time and have him present before and during questioning.
Well, as you heard initially, Mr. Bass waived that right to have an attorney, [and] began the questioning. Question 5 on the Miranda warning says or item 5 says, a decision to waive these rights is not final. And you may withdraw your waiver whenever you wish either before or during questioning. That is actually what happened here. It got to a point in the questioning [where] Mr. Bass indicated he wanted an attorney. The questioning stopped at that point. So, he has invoked his right after beginning the statement. And, again, you may not in any way use his invocation of his right to request an attorney to infer guilt.
[Emphasis added.]
As a general matter, the Fifth Amendment privilege against self-incrimination "precludes a prosecutor from eliciting the defendant's action in hiring an attorney, in view of the tendency of such testimony to serve as the base for an inference of guilt based on such an act." United States v. Williams, 556 F.2d 65, 66 (D.C. Cir.), cert. denied, 431 U.S. 972, 97 S. Ct. 2936, 53 L. Ed. 2d 1070 (1977). "Such statements can be excised without making the narrative stilted, with the effect of avoiding prejudice to or unfair inference against either party." Id. at 67; see also Feaster, supra, 156 N.J. at 75.
These principles are limited, however, as the Supreme Court recognized in Feaster:
[I]n cases where the proffered testimony does relate substantial evidence regarding a defendant's statements about the underlying crime, such that a jury without further information would be naturally inclined to question why testimony regarding subsequent events was not offered, a trial court may in its discretion permit testimony explaining why an interview or interrogation was terminated. Such discretion properly would be exercised only if the testimony is essential to the complete presentation of the witness's testimony and its omission would be likely to mislead or confuse the jury. In those instances, a cautionary instruction should be provided that explains to the jury that people decline to speak with police for many reasons, emphasizing that a defendant's invocation of his right to counsel or right to remain silent may not in any way be used to infer guilt. We believe that approach strikes an appropriate balance by eliminating possible jury confusion and, at the same time, guarding against any impermissible inferences, that could undermine a defendant's fundamental right to a fair trial.
[Id. at 76.]
Here, in his first taped statement, defendant invoked his right to counsel when Detective Ricciardi told him about the "video" of him throwing the gun at the Coca-Cola plant, accused him of being the shooter, and told him he was going to be charged with murder. His request for counsel when the interview turned more confrontational might have been interpreted by the jury, absent a cautionary instruction, as an indication of his guilt. On the other hand, had the interview played for the jury been stopped abruptly without explanation, the jury might have been confused and speculated about what had happened in the meantime. Either scenario was problematic. We believe the trial judge acted within his discretion in dealing with this difficult situation.
Moreover, even if defendant's reference on the tape to seeking counsel should not have been permitted, defendant has not sufficiently shown that he was prejudiced by the disclosure. In the first statement, defendant accused Sinclair of being the shooter. After that statement ended, he gave another statement admitting to being the shooter, but claiming self-defense, i.e., the defense he ultimately proffered at trial. Thus, the jury could not infer guilt from his invocation of counsel during the first taped statement, as defendant himself conceded his involvement during his second taped statement. It was appropriately left to the jury to determine whether his involvement was criminal, or whether it was justified based on self-defense. In fact, it is conceivable that the jury might have considered it natural for a lay person in defendant's circumstances, who allegedly believes he acted in legitimate self-defense, to want to speak to a lawyer in order to understand how the principles of self-defense are applied.
Further, the judge gave a detailed curative instruction at the time of the video, advising the jury not infer guilt from defendant's invocation of counsel. The instruction was repeated during the final jury charge. This curative instruction charge leads us to conclude that any error from the unredacted playing of the tape was harmless. See Feaster, supra, 156 N.J. at 77 (concluding that the fleeting nature of the reference, the lack of prosecutorial comment in summation, the court's general instruction on a defendant's right to remain silent, and the lack of the defendant's request for curative instruction, all rendered the jury's exposure to the defendant's reference to the invocation of counsel harmless error).
H.
Defendant next contends that his right to confront a State witness was improperly infringed when he was precluded from questioning Sinclair about a plea bargain he had made with the State prior to trial. This argument is also without merit.
During the trial, defendant's attorney argued that he should be able to elicit from Sinclair evidence of a 2008 plea bargain that Sinclair made for a crime committed after the shootings in this case. The plea bargain did not require Sinclair to testify in this prosecution. Although defendant's attorney conceded these circumstances, he claimed that he was still entitled to determine whether Sinclair had agreed to testify in this case as a means to "curry favor" with the State.
The trial judge allowed Sinclair to be questioned on all of his prior convictions. He did not permit defendant's attorney to question Sinclair, however, about his plea bargain in the 2008 case, because the connection between that case and this one was "too tenuous." Defendant now argues that this ruling was in error, and his attorney should have been allowed to question Sinclair about his plea bargain as a potential motivation for testifying against defendant.
To be sure, a witness's interest in a case and his expectations of leniency by a prosecutor are generally proper subjects for cross-examination. However, defendant fails to recognize that a witness's interest in testifying can be based only on pending cases or investigations against that witness. We clarified that point long ago in State v. Landano, 271 N.J. Super. 1 (App. Div.), certif. denied, 137 N.J. 164 (1994):
In an unbroken line of decisions, our courts have held that the pendency of charges or an investigation relating to a prosecution witness is an appropriate topic for cross-examination. The basic question is one of interest. "Every fact or circumstance tending to show the jury the witness'[s] relation to the case or the parties is admissible to the end of determining the weight to be given to his evidence." [State v. Spruill, 16 N.J. 73, 78 (1954).] The fact that the witness
denies holding any expectation of leniency is not a proper basis for barring or curtailing cross-examination on the subject. Our Supreme Court has held that prosecutorial suppression of evidence relating to a witness's possible interest constitutes a violation of the defendant's right to due process.
[Id. at 40-41 (citations omitted) (emphasis added).]
Other reported cases have similarly recognized that a witness's credibility may be attacked on the basis of pending crimes for which he or she may expect leniency. See, e.g., State v. Begyn, 34 N.J. 35, 54 (1961) (credibility of witness affected by a "special interest" in case that "comes about by reason of hope, or even bargain, for favor in later prosecution treatment of the witness's own criminal conduct in return for aid in convicting the defendant"); Spruill, supra, 16 N.J. at 78-79 ("the pendency of any indictment against the witness indicates indirectly a similar possibility of his currying favor by testifying for the State," thus affecting the witness's credibility, as does "the existence of a promise or just expectation of pardon") (internal quotations and citation omitted); State v. Baker, 133 N.J. Super. 394, 397 (App. Div. 1975) ("it is immaterial for purposes of admissibility whether the pending indictments relate to the same cause in which the witness is testifying").
In all of the cases cited by defendant in his brief to support his position on this issue, charges were pending against the State's witness that the defense sought to impeach with evidence of a plea bargain. See, e.g., State v. Spano, 69 N.J. 231, 234-35 (1976) (possible motive for witness's testimony could be explored where witness "was still in the process of achieving a complete dismissal" of charges at the prosecutor's recommendation); State v. Mathis, 47 N.J. 455, 468-69 (1966) (jury entitled to know the nature of "pending" charges against witness and his "hope of reward" for testifying); State v. Carter, 69 N.J. 420, 428 (1976) (evidence relevant that representations may have been made to witnesses "as to favorable or sympathetic treatment to be given them" in connection with legal problems), cert. denied, 397 U.S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970).
"There is a sharp difference between leniency already afforded for convictions in the past and promises of more leniency in the future for additional offenses on which he was still open to conviction." Annunziato v. Manson, 425 F. Supp. 1272, 1276 (D. Conn.), aff'd, 566 F.2d 410 (2d Cir. 1977). In affirming the conviction in that case, the Second Circuit Court of Appeals observed that "telling the jury of past favors at the hand of the authorities is not the same as disclosure of an agreement for future reward for testifying. In evaluating bias and interest, the jury should be informed that the witness hopes for leniency on current charges and that the prosecution has a present leverage over the fate of the witness." Annunziato v. Manson, 566 F.2d 410, 414 (2d Cir. 1977) (emphasis added).
Here, at the time of the trial in 2009 and 2010, Sinclair had already been sentenced for his 2008 crime. Therefore, he had no motivation for currying favor with the State about that 2008 crime through his testimony in this case. Defense counsel was afforded a fair opportunity to question Sinclair about his previous convictions and defendant was not manifestly deprived of his right to confront him.
III.
Defendant lastly contends that his sentence was excessive and improper. We reject his contentions, applying our limited scope of review to sentencing determinations. See State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing that appellate courts should give deference to trial judge's exercise of discretion in imposing sentence, and that such discretion should be immune from "second guessing"); see also State v. Roth, 95 N.J. 334, 364-65 (1984) (holding that a sentence imposed within the applicable sentencing guidelines should not be set aside unless it "shocks the judicial conscience").
First, defendant argues that the judge erred in ordering his sentence for murder of Shabazz (count one) to be served consecutive to his sentence for attempted murder of Sinclair (count four). We are satisfied that these consecutive sentences comported with the precepts of State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 890 L. Ed. 2d 308 (1986).
Although defendant acknowledges that there were two victims in this case, he argues that the objectives of the shootings were not predominately independent of each other, but, rather, indicated a single period of aberrant behavior. The State responds that defendant's "shooting rampage was not a single act of violence but rapidly repeated acts of violence."
The trial judge did not err at sentencing in adopting, in essence, the State's characterization of the facts. The crimes involved multiple acts of violence. Defendant arguably could have fired a single shot to scare off Shabazz and Sinclair, if he was truly afraid for his life or possessions. Instead, he shot five rounds at them as they simultaneously fled. Moreover, one victim died, and a second victim was permanently maimed.
"Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences." State v. Carey, 168 N.J. 413, 428 (2001). Even if defendant did not set out to harm both victims, consecutive sentences are appropriate if it was foreseeable that the conduct would result in harm to more than one victim. Id. at 429.
Here, defendant shot five rounds at two people. His conduct made it reasonably foreseeable that more than one person would be harmed. Had the judge made the sentence for Sinclair's attempted murder concurrent with the sentence for Shabazz's murder, defendant would have effectively escaped punishment for shooting and maiming Sinclair, in contravention of the principle espoused in Yarbough, supra, 100 N.J. at 643-44, that there should be no "free crimes." We conclude that the trial judge appropriately applied the Yarbough factors in deciding to impose consecutive sentences for these multiple offenses on counts one, four, and five.
Second, defendant argues that the judge erred in his analysis of the aggravating and mitigating factors. Specifically, he argues that the judge did not provide a sufficient factual basis for finding aggravating factors (3), (6), and (9) under N.J.S.A. 2C:44-1a, and should have found mitigating factors (3), (4) and (11) under N.J.S.A. 2C:44-1b. These contentions lack merit, and do not warrant comment. R. 2:11-3(e)(2).
Finally, defendant urges that a remand should be ordered for consideration of whether his poor health merits a change of confinement to a less severe setting under Rule 3:21-10(b)(2) (providing that "[a] motion may be filed and an order may be entered at any time . . . amending a custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant"). This issue is not properly before this court on appeal. To pursue his claim for such relief, defendant must file a motion in the trial court with supporting affidavits and other documents to support such an application. R. 3:21-10(c). He did not do so, and thus, there is no determination on that subject for this appellate court to review.
For these reasons, defendant's sentence is affirmed in all respects.
IV.
The balance of defendant's arguments, including those in his pro se submission, lack sufficient merit to be discussed in this opinion. 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