Opinion
DOCKET NO. A-0582-11T4
06-16-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIC BIRTHWRIGHT, a/k/a KEYSHAWN WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, 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NOT FOR PUBLICATION WITHOUT THE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 Fisher, Espinosa and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-00681.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant was convicted of murder, unlawful possession of firearm, and possession of a firearm for an unlawful purpos The charges arose from the shooting death of Wiley Kinman. Defendant appeals from these convictions and his sentence. We affirm.
The evidence of defendant's guilt was compelling. We need only summarize some of the salient points.
Kinman was a known drug dealer who sold drugs at Mravlag Manor in Elizabeth. Dihunat Williams testified he was involved in selling drugs with both Kinman and defendant. Kinman's arrangement with defendant, who was also known as "Rue," was that Kinman provided him drugs to sell and expected a portion of the profits in return. Defendant owed Kinman around $300 to $400 from money he failed to return after selling drugs provided by Kinman. During the weeks leading up to Kinman's death, the money defendant owed to Kinman was a constant topic of conversation, which sometimes escalated into a heated argument and physical violence or threats of violence.
In the late afternoon of November 14, 2006, Kinman and defendant were involved in such an argument at Gail Williams's apartment in Mravlag Manor. Kinman yelled at defendant that he wanted his money and referred to defendant's past debts. Kinman told defendant he would see him later and that he was going to "jump [him] or fuck [him] up."
We will refer to Gail Williams as Gail and Dihunat Williams as Williams to avoid confusion.
About five minutes later, defendant left the apartment with Larry Perkins, Kinman's cousin. As they were leaving, defendant said to Perkins, "I'm about to pop him or get him popped" and that he was going to call an individual named Bivot. Perkins went to downtown Elizabeth and defendant left with Bivot to go to another apartment in Mravlag Manor.
Kinman and Williams headed toward a nearby restaurant, Chicken Shack. While inside the restaurant, Williams received a phone call from defendant asking him where he was. Williams told defendant that he was at the restaurant. As Kinman and Williams left Chicken Shack, Kinman stopped to talk to some people, while Williams kept walking toward Mravlag Manor. Williams saw defendant walking toward him with a group of about three or four other people. As defendant passed him, Williams asked, "What's up, where you going?" Defendant did not answer and kept walking. Seconds later, Williams heard three gunshots. Williams took off running toward his mother's house across the street. He did not turn around, but he knew the shots came from behind him. At his mother's house, Williams called Kinman's phone, but there was no answer.
Kinman was killed by three gunshot wounds to the head and neck, fired from behind. A bullet to the top of his head penetrated his skull but not his brain. Two other bullets delivered fatal wounds. One bullet entered his jawline, travelled through his throat and injured two major blood vessels in his neck before exiting. There was a second fatal wound that was instantly lethal, caused by a bullet that entered behind Kinman's left ear, travelled through the left lobe of the cerebellum and then the right lobe, partially transecting the brain stem.
Responding officers found three or four shell casings near Kinman's body. Two of the shell casings had sufficient identifying marks to indicate they were fired from the same firearm.
On the evening of the shooting, defendant called his half-sister, S.T., and asked her to come to Elizabeth from Trenton to pick him up. She said defendant sounded "anxious" but would not tell her what was wrong. She drove to Elizabeth with her housemate. Defendant was quiet on the drive back to Trenton and said he would explain the reason for the big rush when they got there. After they arrived in Trenton, defendant told S.T., her housemate, and S.T.'s boyfriend, George Melvin, that "he just murdered somebody." Thinking he was kidding, they questioned him, but defendant repeated himself and "looked like he was serious." When asked what happened, defendant said he had been arguing with a guy who threatened to smack him with a stick; that he went to get a gun and shot him. Later, defendant called S.T.'s housemate and told her that "he killed the guy because the guy kept coming at him."
At around 10 p.m. that evening, defendant had a phone conversation with J.H., whom he was dating, and told her Kinman had been shot. J.H. recalled that defendant sounded scared. In subsequent conversations, defendant told J.H. he loved her but knew she would be unwilling to "do jail time" with him. Defendant also referred to J.H.'s cousin, a drug dealer who, like Kinman, wanted defendant to pay him money he owed. Defendant told J.H. to tell her cousin that "it was [defendant's] work what happened in Mravlag Manor," which J.H. understood to mean that defendant killed Kinman.
Three days later, J.H. heard from defendant again. Defendant said he shot Kinman after an argument in which Kinman threatened to beat his face in with a stick and that defendant "took the gun from his boy." He told J.H. about an earlier argument with Kinman and that the shooting happened across the street from Chicken Shack.
The day after the murder, defendant called Williams and said he knew that everybody was mad at him.
The jury convicted defendant on all charges. He was sentenced to a fifty-year prison term with an eighty-five percent period of parole ineligibility on his conviction for first-degree murder, and concurrent sentences on the weapons offenses. Defendant was credited with 68 days of jail credit and 1358 days of gap time credit.
In this appeal, defendant presents the following issues for our consideration:
POINT I
THE COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF AGGRAVATED MANSLAUGH[T]ER, DESPITE DEFENDANT'S REQUEST FOR THE CHARGE AND EVIDENCE SUPPORTING IT. MOREOVER, THE TRIAL COURT ERRONEOUSLY FAILED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF PASSION-PROVOCATION MANSLAUGHTER. (PARTIALLY RAISED BELOW)
A. THE COURT ERRED IN FAILING TO INSTRUCT THE JURY ON AGGRAVATED MANSLAUGHTER, DESPITE DEFENDANT'S REQUEST FOR THE CHARGE.POINT II
B. THE COURT ERRONEOUSLY FAILED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF PASSION-PROVOCATION MANSLAUGHTER.
THE COURT'S INSTRUCTION ON PRIOR CONTRADICTORY STATEMENTS LEFT OUT TWO
CRUCIAL PARAGRAPHS AND SUBSTITUTED "CONSISTENT" FOR "INCONSISTENT" IN THE MODEL CHARGE THROUGHOUT, THEREBY PROVIDING INADEQUATE GUIDANCE AND RENDERING IT HOPELESSLY CONFUSING. (NOT RAISED BELOW)
A. TWO OF THE WITNESSES PROVIDED REASONS WHY THEY WERE TESTIFYING INCONSISTENTLY WITH THEIR PRIOR STATEMENTS TO THE POLICE, AND THE ENTIRE MODEL JURY CHARGE SHOULD HAVE BEEN READ TO THE JURY.POINT III
B. THE JUDGE SUBSTITUTED "CONSISTENT" FOR "INCONSISTENT" SEVERAL TIMES DURING THE CHARGE ON PRIOR CONTRADICTORY STATEMENTS, RENDERING THE CHARGE UNINTELLIGIBLE.
THE AGGREGATE SENTENCE OF 50 YEARS, WITH AN 85% PAROLE DISQUALIFIER, IS MANIFESTLY EXCESSIVE.
In a supplemental pro se brief, defendant raises the following arguments:
POINT I
VERDICT IS INCONSISTENT WITH THE EVIDENCE, THE STATE FAILED TO PRODUCE EACH ELEMENT TO PROVE BEYOND REASONABLE DOUBT IN ALL COUNTS ADJUDICATED, APPELLANT ASSERTS A CLAIM OF ACTUAL INNOCENCE FOR THE CORRECTION OF SENTENCE THAT IS CAUSING FALSE IMPRISONMENT, HAS CAUSED A DEPRIVATION TO DEFENDANT OF A RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL AND VIOLATED HIS CONSTITUTIONAL RIGHTS PROVIDED IN THE U.S. CONST. AMEND V AND XIV; N.J. CONST. (1947) ART. I, PAR[A]. 1. (NOT RAISED BELOW)
POINT II
APPELLANT'S CONVICTION IS AT ISSUE, INFERS TO MISTAKE OF LAW APPLIED AT SENTENCING CONSTITUTING A EXPIRED SENTENCE AND FALSE IMPRISONMENT. (NOT RAISED BELOW)
A. DEPRIVATION OF PROTECTED RIGHTS, PRIVILEGES OR IMMUNITIES SECURED BY THE CONSTITUTION.POINT III
B. SUPERIOR COURT OF NEW JERSEY, UNION COUNTY, PROMIS NO./CASE NO. 07-001477-001, LACKED JURISDICTION SINCE NO AFFIDAVIT OF PROBABLE CAUSE FOR ISSUANCE OF ARREST WARRANT WAS PRODUCED, DISCOVERED NOR PROVIDED TO SUPPORT THE COMPLAINT/WARRANT, INFERS THE CHARGES TO BE VOID AB INITIO, IN VIOLATION TO ARTICLE I, PAR. 7 OF NEW JERSEY CONSTITUTION.
C. THE STATE MERGED ALL 3 CRIMES IN THE SAME INDICTMENT AS SEPARATE COUNTS TO PROSECUTE AND CONVICT ON MULTIPLE OFFEN[S]ES.
D. DOUBLE JEOPARDY BY MULTIPLE PUNISHMENT.
E. EXESSECIVE [SIC] SENTENCE BY THE IMPOSITION OF 85% NO EARLY RELEASE ACT, IS A MISTAKE OF LAW INAPPLICABLE TO INSTANT APPELLANT SINCE HE HAS NO "PRIOR CRIME" CONVICTION OF "SIMILAR NATURE" INFERS TO FALSE IMPRISONMENT.
F. DEPRIVATION BY A INDICTME[N]T NOT FROM THE GRAND JURY.
[G.] THE INDICTMENT WAS "AMENDED."
EXPIRED SENTENCE. (NOT RAISED BELOW)
A. MISTAKE OF LAW BY IMPOSING 85% NO EARLY RELEASE ACT, WHEN THE CASE IS A GRAVES ACT CASE AB INITIO.POINT IV
B. MISTAKE OF FACTS BY IMPOSING IMMATERIAL AGGRAVATING FACTORS, SINCE DEFENDANT HAS NO "PRIOR CRIME" CONVICTION OF "SIMILAR NATURE" TO REFERENCE FROM.
INEFFECTIVE ASSISTANCE OF COUNSEL DURING VOIR DIRE CAUSING PREJUDICE TO DEFENDANT, HAS VIOLATED DEFENDANT'S RIGHT UNDER U.S. CONST. AMEND VI; N.J. CONST. ART. 1 AND 10. (NOT RAISED BELOW)
POINT V
DEFENDANT'S JUDGMENT SHOULD BE VACATED BECAUSE TRIAL COUNSEL INEFFECTIVELY REPRESENTED DEFENDANT, HAS VIOLATED DEFENDANT'S RIGHT UNDER U.S. CONST. AMEND VI; N.J. CONST. ART. 1 AND 10. (NOT RAISED BELOW)
POINT VI
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS, COMBINED WITH TRIAL COUNSEL'S OMISSITONS [SIC], DURESS, AND PREJUD[]ICE, DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW)
N.J.S.A. 2C:43-6(c)
We agree that defendant's conviction for possession of a firearm for an unlawful purpose merges with his murder conviction, a point conceded by the State. Aside from the merger issue, we find none of these arguments persuasive and affirm defendant's convictions and sentence in all other respects.
I
We first address defendant's challenges to the jury instructions.
The trial judge denied defendant's request for a charge on the lesser-included offense of aggravated manslaughter, finding no rational basis in the evidence for the jury to conclude that defendant killed Kinman recklessly. Defendant argues that the trial judge erred in doing so and committed plain error in failing to instruct the jury on passion/provocation manslaughter.
The jury charge is "a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Savage, 172 N.J. 374, 387 (2002). A trial judge's determination whether to charge a lesser-included offense is guided by N.J.S.A. 2C:1-8(e), which states, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." To satisfy this condition, the evidence must present a rational basis for a jury to acquit on the greater charge but convict on the lesser-included charge. See State v. Jenkins, 178 N.J. 347, 361-364 (2004); State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); State v. Messino, 378 N.J. Super. 559, 581 (App. Div.), certif. denied, 185 N.J. 297 (2005); Cannel, New Jersey Criminal Code Annotated, comment 12 on N.J.S.A. 2C:1-8 (2013). When a defendant requests a jury charge on a lesser-included offense, a court's failure to do so constitutes reversible error if the evidence provided "a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of [a] lesser." State v. Brent, 137 N.J. 107, 117-18 (1994).
Upon request, a court must examine whether (1) "the requested charge satisf[ies] the definition of an included offense set forth in N.J.S.A. 2C:1-8(d)," and whether there is "a rational basis in the evidence to support a charge on that included offense." State v. Cassady, 198 N.J. 165, 178 (2009). "The question is not whether the jury is likely to accept the defendant's theory, but whether the jury would have a rational basis on which to do so." Savage, supra, 172 N.J. at 397. "[S]heer speculation," however, "does not constitute a rational basis." Brent, supra, 137 N.J. at 118.
A
Defendant was charged with murder, that is, purposely or knowingly causing the death, or serious bodily injury resulting in death, of Wiley Kinman. N.J.S.A. 2C:11-3(a)(1) and (2). He argues that the trial court should have granted his request and instructed the jury on aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1). A person commits aggravated manslaughter when he "recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1).
At the charge conference, the trial judge asked defense counsel to identify the rational basis that would support a charge on aggravated manslaughter or reckless manslaughter. Defense counsel argued that "you never know what facts a jury may find" and that "there's very little evidence to support the shooting itself other than circumstantial evidence." Defense counsel argued that the bullets could have been fired from more than one gun and stated that no motive had been established. The trial judge concluded there was no basis for giving instructions on the lesser-included charges.
On appeal, defendant contends that a rational basis existed for the charge because Kinman's threats to beat him up may have led defendant to carry a gun because he reasonably anticipated a confrontation "during which his gun might have discharged." (Emphasis added). He also argues that "the only proof of a motive for the killing was that [defendant] owed Kinman between $100 and $300," which, he contends, is too small an amount of money to create a motive for the killing. He then argues that, within the context of a lesser-included charge, "the question of motive might have loomed far larger in the jury's deliberations." (Emphasis added.) The only other evidence he cites is the inability of the ballistic experts to determine whether all four shells found at the scene were shot from the same gun. Defendant contends that the evidence provided a rational basis for the jury to conclude that defendant did not knowingly or purposely cause Kinman's death, even if the jury believed that defendant killed Kinman.
We disagree. Kinman was shot in the head and neck with multiple shots from behind. Evidence that the shooting was purposeful included the following: eyewitness accounts of defendant at the scene; defendant's statements that he obtained a gun and was going to "pop [Kinman] or get him popped;" his call to Williams to determine where he and Kinman were; the fact that Kinman was shot within seconds of defendant's arrival; and defendant's statements afterward that he "murdered" Kinman and that "it was [defendant's] work what happened in Mravlag Manor." There was no evidence to support a contrary view that the shooting was accidental and not intentional, not even a statement by defendant to that effect. "[I]t cannot reasonably be said that shooting a victim" in the head and neck region with a firearm three times in close range "involved mere reckless conduct or a conscious disregard of a substantial risk of death." State v. Ramsey, 415 N.J. Super. 257, 269-71 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011 ); see also State v. Simon, 161 N.J. 416, 449 (1999). Notably, even in articulating the argument, defendant speaks of what the jury "might" have done. Because his argument does not rise above "sheer speculation," he has failed to show a rational basis for the aggravated manslaughter charge. Brent, supra, 137 N.J. at 118. The trial judge did not err in denying his request.
B
Defendant's argument regarding the trial judge's failure to instruct the jury on passion/provocation manslaughter, sua sponte, is subject to the plain error standard. R. 2:10-2; State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Therefore, we will only reverse upon a showing that the lack of "the charge prejudicially affect[ed] the substantial rights of the defendant and [was] sufficiently grievous to . . . convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Singleton, 211 N.J. 157, 182-83 (2012). The error must "raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
A trial court's duty to give a charge that is not requested "arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction." State v. Rivera, 205 N.J. 472, 489 (2011). "The trial court does not . . . have the obligation on its own meticulously to sift through the entire record in every murder trial to see if some combination of facts and inferences might rationally sustain a charge" that has not been requested. State v. Choice, 98 N.J. 295, 299 (1985).
The elements of passion/provocation manslaughter are
[1] the provocation must be adequate; [2] the defendant must not have had time to cool off between the provocation and the slaying; [3] the provocation must have actually impassioned the defendant; and [4] the defendant must not have actually cooled off before the slaying.
[State v. Mauricio, 117 N.J. 402, 411 (1990).]
The provocation element of passion/provocation manslaughter is measured by an objective standard, that is, the provocation "must be 'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" State v. Foglia, 415 N.J. Super. 106, 126 (App. Div.) (alterations in original) (quoting Mauricio, supra, 117 N.J. at 412), certif. denied, 205 N.J. 15 (2010).
Defendant argues that the adequate provocation standard was met here because Kinman had threatened him. However, defendant does not contend that Kinman was armed or threatened him with violence in the seconds before he shot him three times in the head and neck from behind.
At best, defendant can only point to heated exchanges that occurred between himself and Kinman for several weeks. This is insufficient. "Adequate provocation is not satisfied by 'words alone, no matter how offensive or insulting.'" State v. Docaj, 407 N.J. Super. 352, 368 (App. Div.) (quoting State v. Crisantos, 102 N.J. 265, 274 (1986)), certif. denied, 200 N.J. 370 (2009). Moreover, there was no evidence that defendant lacked "time to cool off between the provocation and the slaying." Mauricio, supra, 117 N.J. at 411. Therefore, there was no error in failing to charge the jury on passion/provocation manslaughter.
C
Defendant also argues that the trial judge committed plain error in giving the Model Jury Charge on Prior Contradictory Statements of Witnesses (Not Defendant) (1994) (the Model Jury Charge).
Among the number of witnesses who testified about the circumstances of the shooting and defendant's statements, five testified that they either did not recall parts of statements they gave to police or that the prior statements were false: Tyeem Thomas, Larry Perkins, Eddie Bland, Trent Armour, and George Melvin.
Two of the witnesses provided reasons why their testimony was inconsistent with their prior statements. Bland testified that he could not remember being asked questions or anything that happened on the night of the killing because he was "too drunk." In his testimony, Thomas denied telling a detective that he had observed defendant walking past him and, shortly thereafter, had seen "Hickey and Blau" come running, saying, "Oh, shit, they just killed Wiley." Thomas stated that "somebody twisted [his] words." Defendant does not contend that the remaining witnesses provided any explanation for the inconsistencies between their prior statements and their testimony.
The trial judge conducted Gross hearings to determine the reliability of the prior out-of-court statements. The judge found that Thomas was not credible in claiming his earlier statement was false. He also rejected the claims of the other four witnesses. He concluded that Perkins and Armour feigned an inability to recall; that Bland was not really drunk; and that Melvin claimed he was unable to recall because he did not want to break the street code of silence. The judge permitted the prior inconsistent statements to be admitted in evidence and delivered an instruction that essentially tracked the Model Jury Charge:
State v. Gross, 121 N.J. 1, 10, 15-17 (1990)
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Evidence, including a witness's statement or testimony prior to the trial showing that at a prior time a witness said something which is inconsistent with the witness's testimony at the trial may be considered by you for the purpose of judging the witness's credibility. It may also be considered by you as substantive evidence, that is as proof of the truth of what is stated in the prior contradictory statement.
Evidence has been presented showing that at a prior time a witness may have said something, or may have failed to say something, that is consistent with the witness's testimony at the trial. You must first decide whether the witness made a prior inconsistent statement, or failed to say something that is consistent with the witness's testimony at trial. If you conclude that a witness made a prior
inconsistent statement, or failed to say something that is consistent with the witness's testimony at trial, this evidence may be considered by you as substantive evidence, or proof of the truth of the prior contradictory statement or omitted statement.
However, before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness you will want to consider all the circumstances under which the statement or failure to disclose occurred. You may consider the extent of the inconsistency or omission, and the importance, or lack of importance, of the inconsistency or omission on the overall testimony of the witness, as bearing on his or her credibility. You may consider such factors as where and when the prior statement or omission occurred and the reasons, if any, therefor[]. Perhaps a hypothetical will help you understand what constitutes a prior contradictory statement and, more importantly, how it may be used by you.
Assume at the trial the witness testifies the car was red. In cross-examination of that witness, or at some other point in the trial, it is shown that in an earlier time the witness testified or said the car was blue. You may consider the prior contradictory statement that the car was blue as a factor in deciding whether or not you believe that statement made at trial that the car was red. You may also consider the earlier statement that the car was blue as proof of the fact or as evidence that the car was blue.
Evidence has been presented showing that at a prior time witnesses have said things that are inconsistent, or have failed to say something that is consistent with their testimony at the trial. You may
consider this evidence, along with all the other evidence in the case. However, you must first decide whether the witness made a prior inconsistent statement, or failed to say something that is consistent with the witness's testimony at trial. If you conclude that the witness made a prior inconsistent statement, or failed to say something that is consistent with the witness's testimony at trial, this evidence may be considered by you as substantive evidence, or proof of the truth of the prior contradictory statement or omitted statement.
In deciding whether any such statement, if made, is credible, you should consider any and all relevant factors including the witness's connection to, and interest in, the matter reported in his or her prior statement; the person, or persons, to whom the witness gave the statement; the place and occasion for giving the statement; whether the witness was then in custody or otherwise a target of investigations; the physical and mental condition of the witness at the time; the presence or absence of other persons; whether the witness incriminated himself or herself, or sought to exculpate himself or herself by the statement; the presence or absence in the nature of any interrogation; whether the recording of the prior statement contains all or only a portion or summary of what the witness said; the presence or absence of any motive to fabricate; the presence or absence of any explicit or implicit pressures, inducements or coercion for making the statement; whether the use to which the authorities have put the statement was apparent or made known to the witness; the inherent believability, or lack of believability of the statement; the presence or absence of corroborating evidence.
I further instruct you that a witness's prior inconsistent statement under police interrogation must be carefully examined and assessed in light of all the surrounding circumstances, including his or her interest in giving the statement at that time. If you decide that the statement is reliable then you may consider it for the truth and weigh it along with all the other evidence in the case. However, if you decide that the statement is not reliable then you may not consider it for any purpose.
Defendant did not object to this charge. He now argues that the trial judge omitted the following two paragraphs from the charge:
In regard to the testimony of (witness' names) on cross-examination inconsistencies were shown (admitted) between the prior statements and those given on the stand [or: between the witness's prior silence and statements on the stand.] The witness(es) gave reasons therefor, saying that [many of] such prior statements or omissions were untrue. Among the reasons given that I recall, were (list reasons: self protection, exculpation, poor recollection at the time, things recently remembered and not, therefore, formerly disclosed, not believing a matter was important, etc.)Defendant contends that these two paragraphs were "crucial" because discrediting the prior statements of the witnesses was "the focus of the defense." However, defendant has identified only two witnesses as providing explanations for the inconsistencies. One claimed he was too drunk to remember, and the other contended his words were "twisted" in the statement. Additionally, defendant asserts that the trial judge substituted the word "consistent" for the word "inconsistent" in the jury instruction.
The extent to which such inconsistencies or omissions reflect the truth is for you to determine. Consider their materiality and relationship to (his/her) entire testimony and all the evidence in the case, when, where and the circumstances under which they were said or omitted and whether the reasons (he/she) gave you therefor appear to be to you believable and logical. In short, consider all that I have told you before about prior inconsistent statements or omissions.
[Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant) (1994).]
The errors complained of "must be considered in light of the entire charge and must be evaluated in light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)); see also State v. Galicia, 210 N.J. 364, 388 (2012). As we have stated, the evidence of defendant's guilt, much of which was drawn directly from his own statements, was compelling. Although the trial judge deviated from a verbatim recitation of the Model Jury Charge, the charge advised the jury to carefully consider all the circumstances under which the prior statement was given, including "such factors as where and when the prior statement or omission occurred and the reasons, if any therefor[]." In reviewing the entire charge, we are satisfied that it was "an adequate instruction on the law," State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002), and that the errors alleged did not have the clear capacity to bring about an unjust result. R. 2:10-2.
II
As we have noted, the State agrees that defendant's conviction for possession of a firearm for an unlawful purpose merges with his conviction for murder, which requires a remand for the correction of defendant's sentence. In addition, defendant argues that the judgment of conviction should be corrected to reflect jail credits for sixty-eight days, rather than forty days. We are unable to determine whether the judgment of conviction contains an error on jail credits because it was amended on April 21, 2011 and no transcript has been provided for that day. Therefore, upon remand, this matter should be clarified and corrected, if appropriate.
There is another error in the judgment of conviction that should be corrected upon remand. Count two of the indictment alleges that defendant "did knowingly and unlawfully possess a certain firearm, to wit: a handgun without first having obtained a permit. . . ." The third-degree offense described pertains to N.J.S.A. 2C:39-5(b)(1). However, the indictment identifies the applicable statute as N.J.S.A. 2C:39-5(d), which prohibits the knowing possession of "any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have" and is a fourth-degree offense. Although the instruction given to the jury as to count two was that applicable to the third-degree offense and the judgment of conviction identifies count two as a third-degree offense, the applicable statute is identified on the judgment of conviction as "N.J.S.A. 2C:39-5D."
Defendant also argues it was manifestly excessive to impose a fifty-year term with an 85% period of parole ineligibility. In support of that argument, he contends that the record supported three mitigating factors the trial judge failed to find, i.e., N.J.S.A. 2C:44-1(b)(3) (defendant acted under a strong provocation); N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify the defendant's conduct); and N.J.S.A. 2C:44-1(b)(5) (victim induced or facilitated its commission). This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In his supplemental pro se brief, defendant has raised a number of issues, including allegations that he was deprived of the effective assistance of counsel. We express no opinion as to whether those claims have any merit but merely observe that such claims are properly raised in petitions for post-conviction relief rather than on direct appeal. State v. Hess, 207 N.J. 123, 145 (2011); State v. Preciose, 129 N.J. 451, 460 (1992). The remaining arguments raised by defendant in his pro se brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's convictions are affirmed. We remand to permit the trial court to address the merger, jail credits issues and apparent error on the judgment of conviction consistent with this opinion. In all other respects, the sentence is affirmed. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION