Opinion
DOCKET NO. A-0591-12T3
06-09-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. COREY CAUTHEN a/k/a JAMES MARROW, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-01-0006.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief). PER CURIAM
Tried before a jury on six counts of a seven-count indictment, defendant Corey Cauthen was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3, and N.J.S.A. 2C:2-6 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6 (count two); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) and N.J.S.A. 2C:2-6 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and second-degree possession of a weapon without a carry permit, N.J.S.A. 2C:39-5b (count five).
Count seven, second-degree possession of a handgun as a convicted felon, N.J.S.A. 2C:39-7b, was dismissed on the State's motion at the conclusion of the trial. A similar charge set forth in count six solely against co-defendant Asmar Bease was also dismissed. The jury convicted Bease on counts one through five.
At sentencing, the trial judge granted the State's motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3a. The judge merged the convictions for counts two, three, and four into count one and sentenced defendant to fifty years in prison to run consecutively to a sentence he was already serving for unrelated offenses, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge sentenced defendant to a five-year concurrent term on count five. Thus, defendant's aggregate sentence was fifty years. The judge required defendant to serve a five-year term of parole supervision following his release from prison and imposed appropriate fines and penalties.
On appeal, defendant has raised the following contentions:
POINT IAfter reviewing the record in light of the contentions advanced on appeal, we affirm.
THE VICTIM'S IDENTIFICATION OF THE DEFENDANT WAS THE PRODUCT OF AN IMPERMISSIBLY SUGGESTIVE SINGLE PHOTO PROCEDURE THAT RENDERED THE [IDENTIFICATION] UNRELIABLE AND, THEREFORE, SHOULD HAVE BEEN SUPPRESSED.
POINT II
A CRITICAL SECTION OF THE ACCOMPLICE LIABILITY CHARGE THAT CAUTIONED THE JURY THAT MERE PRESENCE AT OR NEAR THE SCENE DOES NOT MAKE ONE A PARTICIPANT IN THE CRIME WAS OMITTED. (Not Raised Below).
POINT III
THE COURT ERRED IN ADMITTING A STATEMENT ALLEGEDLY MADE BY THE VICTIM TO A POLICE OFFICER WHILE EN[]ROUTE TO THE HOSPITAL AS A DYING DECLARATION.
POINT IV
THE SENTENCE OF 50 YEARS, SUBJECT TO NERA, WAS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.
I.
We derive the following facts from the record. On August 1, 2008, the victim, Alphonso Gee, and his wife, were at home. Gee's wife asked him if she could go out with a female friend for a couple of hours. Gee reminded his wife the couple had plans the following day and she said she would be home by 2:00 a.m. Around 2:30 a.m., Gee realized his wife was still not home and called her on the telephone. She said she was on her way home from New York and would be there in ten or fifteen minutes. When his wife failed to appear, Gee got in his car and went out looking for her between 3:30 and 4:00 a.m.
Gee found the vehicle his wife was driving that night parked at an intersection. He opened the rear driver's side door and saw his wife and co-defendant Asmar Bease in the backseat. Gee testified that "Asmar had his pants down to his ankles" and his wife was "naked from the waist down." Gee "snatched" his wife out of the vehicle and started to hit her. He then called her mother and brother "just to show them how she was." Gee drove his wife to a restaurant "a block or two away," dropped her off to her brother, who was waiting there, and went to find Bease.
Gee testified he knew Bease from fund raisers Gee held for a youth football team he coached. Gee frequently saw and occasionally spoke to Bease at a specific location when he picked up and dropped off children from his football team there. Because Gee knew where Bease usually could be found, he went to the location looking for him after leaving his wife with her brother.
When Gee arrived at the location, he saw Bease, stopped his vehicle, and got out to approach him. Defendant then "came out of nowhere[.]" Gee recognized defendant as someone who hung out with Bease "basically every[]day." Although Gee had spoken to defendant at least once in the past, he did not know defendant's name. He described defendant as a "tall dark skinned male with dreadlocks."
As Gee approached the men, he saw them reach in their pockets and pull out guns. Because he was unarmed, Gee got back into his vehicle and tried to "get out of there." Gee saw both men with guns pointed at the left side of his face. When he tried to start his vehicle, the men shot at him, and Gee "slumped over" after being shot several times in the collar bone and neck.
Officer Eric Fajardo was the first police officer to arrive at the scene. He found Gee inside of the vehicle, leaning over toward the console and unresponsive. Officer Fajardo was unable to find a pulse and told the next officer to arrive that he thought Gee was dead. Gee then started grunting. The officers called for an ambulance and applied first aid until it arrived.
Officer Jason English rode in the ambulance with Gee and was instructed by a police sergeant to "try and speak with the victim, find out any information related to the case." Officer English advised Gee "that his injuries were life threatening, that what he tells me could be his dying declaration. . . . I asked him if he knew who shot him. [Gee] stated it was Asmar Bease and a tall dark skinned male with dreadlocks." The officer repeated the question and Gee provided the same answer, and added, "'It was because I caught him having sex with my wife.'"
Lt. Richard Reyes arrived at the scene of the shooting at around 6:00 a.m. on August 2, 2008. After reviewing the scene, Lt. Reyes went to the hospital to interview Gee. Upon arriving at the hospital, Lt. Reyes spoke to Gee in the trauma room at the hospital. Gee was paralyzed from the neck down, but was still able to speak.
Gee told Lt. Reyes that he caught his wife having sex with Bease, approached Bease to fight him, and Bease, who he knew by name, and a "thin tall black male with long dreads" shot him. Lt. Reyes relayed this information to the other detectives and because they were familiar with defendant from a previous investigation, they knew that Gee was referring to defendant.
The detectives went back to the scene of the shooting to look for evidence, and then to police headquarters to gather photos of both Asmar Bease and "of the other individual that was described as the black male with the dreadlocks" to show Gee. The detectives returned to the emergency room later that morning and conducted a second interview of Gee. Lt. Reyes showed Gee the photograph of Bease, and Gee confirmed that the photograph was of Bease, that Bease was one of the individuals involved in the shooting, and that he had known him for a while. Gee stated that he also knew the other individual involved in the shooting because "he always hangs out with Asmar Bease . . . in that location . . . on one of the porches." Lt. Reyes then showed Gee the photograph of defendant and Gee positively identified defendant as the second individual involved in the shooting. During his testimony, Gee identified both defendant and Bease as the men who shot him.
At trial, Bease called Brian Devroe, a paramedic who was in the ambulance with Gee the morning of August 2, 2008. Devroe did not recall hearing any conversation between Officer English and Gee. Defendant and Bease did not call any other witnesses.
II.
Defendant contends the judge erred in denying his motion to suppress Gee's out-of-court identification of him. He argues that the single-photograph identification procedure used by Lt. Reyes was impermissibly suggestive and tainted the identification Gee made. We disagree.
A pretrial identification is admissible at trial unless the identification procedure was impermissibly suggestive, and the objectionable procedure created a "'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). As the Court noted, "'[r]eliability is the linchpin in determining the admissibility of identification testimony[.]'" Ibid. (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).
In State v. Henderson, 208 N.J. 208 (2011), the Court revised the guidelines for evaluating out-of-court identification procedures; however, those guidelines applied only prospectively. Id. at 300-02 ("today's ruling will take effect thirty days from the date this Court approves new model jury charges on eyewitness identification"). The new model jury charge was revised, effective September 9, 2012, before defendant was tried in this matter. Therefore, the Henderson decision does not apply.
If the court determines that the identification procedure was "impermissibly suggestive," then the question is "'whether the impermissibly suggestive procedure was nevertheless reliable' by considering the 'totality of the circumstances' and 'weighing the suggestive nature of the identification against the reliability of the identification.'" State v. Romero, 191 N.J. 59, 76 (2007) (quoting State v. Herrera, 187 N.J. 493, 503-04 (2006)). The circumstances to be considered in this analysis include: (1) the "opportunity of the witness to view the criminal at the time of the crime[;]" (2) "the witness's degree of attention[;]" (3) "the accuracy of his prior description of the criminal[;]" (4) "the level of certainty demonstrated at the time of the confrontation[;]" and (5) "the time between the crime and the confrontation." Madison, supra, 109 N.J. at 239-40. These factors are to be weighed against "the corrupting effect of the suggestive identification itself." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.
Here, the trial judge conducted a pre-trial Wade hearing at which Lt. Reyes testified as to Gee's positive identification of defendant in the trauma room of the hospital as the "thin tall black male with long dreads" who shot him. Based upon Gee's description and his statement that the thin tall man he described "always hangs out with Asmar Bease . . . in that location . . . on one of the porches[,]" the police were able to determine that defendant was the person being described. Lt. Reyes testified that he showed Gee a single photo of defendant and Bease because "Gee informed me that he knew both of the individuals."
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
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In denying defendant's motion to exclude testimony of the identification, the judge noted that neither defendant nor Bease were "stranger[s]" to Gee. He made the identification within a "fairly short [period of] time" after he was shot. Gee also gave a "consistent" description of defendant as a "tall, thin [man, with] long dreadlocks[.]" The judge stated:
But . . . more importantly, the fact that [defendant] was identified as being a habitu[é] of a certain location, [on a porch on a specific street] near a beauty salon [at a specific location]. And even more important than that, someone who he identified as being very closely associated with Mr. Bease, that they hung out at that location all the time.
The fact that there wasn't greater exploration by the police, certainly not as far as the Court knows at this juncture, certainly strikes the Court as sloppy on the part of the police. It would have been fairly simple it seems to have asked more questions with regard to length of knowledge, time frames and the like, frequency of observation.
But there -- there's enough there to -- to lead to that as being an adequate . . . identification that is not something that would appear to suggest that there's a great likelihood of some irreparable misidentification considering the totality of the circumstances.
. . . .
I find that the State certainly produced enough evidence for the issue of identification to go to the jury. I don't find that the defense has persuaded the Court, or even come close, that there is a very substantial likelihood of irreparable misidentification despite the fact that there was, again, by being a one photo lineup or show-up there is inherent suggestiveness.
We discern no basis for disturbing the judge's reasoned determination. Assuming that the procedure of showing Gee only a single photo of defendant was suggestive, Gee's identification of him was inherently reliable because (1) Gee and defendant were not strangers and Gee knew defendant from frequently seeing him with Bease at a specific location; (2) the identification procedure occurred no more than "four or five hours" after the shooting; (3) Gee was paying attention to both defendant and Bease as he met them on the street and he had ample opportunity to observe defendant because he was shot at point blank range; (4) Gee gave a consistent description of defendant before being shown the photograph; (5) Gee's positive identification was immediate and certain; and (6) Lt. Reyes did not prompt defendant in any way during the procedure. The judge properly and thoroughly charged the jury on the issue of identification, there was no objection to the charge, and the jury was free to reject the procedure as unreliable after it weighed the pros and cons of the methodology employed by Lt. Reyes.
III.
Defendant next argues for the first time on appeal that the judge failed to properly instruct the jury on the principles of accomplice liability. Specifically, he asserts the judge erred by omitting the portion of the Model Charge that states that an individual's "mere presence" at the scene of a crime "does not make one a participant in the crime[.]" This argument lacks merit.
A defendant has the obligation "to challenge instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35. When a defendant fails to object to the judge's instruction, we review the claimed error under the plain error standard. R. 2:10-2.
It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Ibid. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008).
However, an error in the charge that is clearly harmless and could not have affected the jury's deliberations will not warrant reversal. State v. Docaj, 407 N.J. Super. 352, 369-70 (App. Div.), certif. denied, 200 N.J. 370 (2009). Even a charge that is not perfectly clear may be deemed adequate if it "had no capacity to lead the jurors astray." State v. Miller, 2 05 N.J. 109, 127 (2011); see also State v. Josephs, 174 N.J. 44, 100 (2002) (omission of specific language about defendant's knowledge did not render instructions insufficient because the "court's instructions, considered as a whole, achieved the same result"); State v. Belliard, 415 N.J. Super. 51, 74 (App. Div. 2010) (charge as a whole deemed adequate despite court's failure to define attempt), certif. denied, 2 05 N.J. 81 (2011).
Here, the State's proofs indicated that defendant and Bease shot Gee at point blank range. Defendant argued in summation that he was not at the scene. Under these circumstances, the optional "mere presence" language set forth in the Model Charge for accomplice liability was plainly inapplicable. Therefore, there was no error, much less plain error, in the judge's decision to provide the jury with only the appropriate portions of the Model Charge.
IV.
Defendant contends the judge erred in permitting Officer English to testify about the "dying declaration" Gee made to him in the ambulance that the second shooter was "a tall dark skinned male with dreadlocks." We perceive no error.
We review a trial court's evidentiary determinations under an abuse of discretion standard. State v. Buda, 195 N.J. 278, 294 (2008) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). An abuse of discretion only arises on demonstration of "manifest error or injustice." Hisenaj, supra, 194 N.J. at 20 (citation omitted). An abuse of discretion occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (citation and internal quotation marks omitted).
"In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death." N.J.R.E. 804(b)(2). See also State v. Graham, 59 N.J. 366, 370 (1971). As a threshold matter, the court must first determine that the declarant is unavailable as a witness. N.J.R.E. 804(a)(3) provides that unavailability may arise from "a lack of memory of the subject matter of the statement[.]"
Here, Officer English testified he told Gee that "his injuries were life threatening, [and] that what he tells me could be his dying declaration[.]" Gee testified he could not remember speaking to the officer on the way to the hospital. Under these circumstances, the judge found that Gee, who had been shot in the neck, made his statement with the belief that his death was imminent and was "unavailable" to testify concerning this statement because he did not remember making it. Based upon N.J.R.E. 804(b)(2), we perceive no abuse of discretion in this ruling.
Moreover, Gee's statement to Officer English was also admissible under N.J.R.E. 803(a)(3), which provides that "a prior identification of a person made after perceiving that person" is admissible "if made in circumstances precluding unfairness or unreliability." That is clearly the case here. Gee identified the second shooter as "a tall dark skinned male with dreadlocks" as he was being driven to the hospital with life-threatening injuries. Certainly, the statement was "made in circumstances precluding unfairness or unreliability." Ibid. Therefore, the judge did not err in permitting Officer English to testify about the statement.
V.
Finally, defendant argues that his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION