Opinion
DOCKET NO. A-1887-13T4
04-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PATRICK MCFARLANE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Katie Mae Magee, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-06-574. Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Katie Mae Magee, Assistant Prosecutor, on the brief). PER CURIAM
Tried to a jury, defendant Patrick McFarlane was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The trial judge sentenced defendant to sixty years on the murder count and twenty years on the armed robbery count, both with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The felony murder and unlawful gun possession charges were merged. Because defendant was nineteen at the time of the crimes and would be at least seventy when he became eligible for parole, the judge determined that the interests of justice were best served by running defendant's sentences concurrently.
On appeal, defendant challenges two of the judge's evidentiary rulings, the prosecutor's summation, the jury instructions, and his sentence. As we find no merit to any of these arguments, we affirm defendant's convictions and sentence.
I.
We glean the following facts from the trial record. During the early evening of May 4, 2008, Richard Mason was playing dice near the intersection of New Willow Street and Kirkbride Avenue in Trenton with several young men from the neighborhood. Defendant and Roderick Armstrong decided to rob the players. As they approached the game, defendant displayed a silver .357 revolver and told everyone not to move. Ignoring the command, the players scattered in different directions. Defendant and Armstrong chose to pursue Mason who ran south on New Willow Street. Defendant fired two or three times, striking Mason once in the back. After Mason fell to the ground, defendant reached into Mason's pockets and took his money, his watch, and a chain before fleeing.
Trenton police responded and found Mason still alive but struggling to breathe and unable to communicate. Mason was taken to a local hospital where he died thirty minutes later from the gunshot wound.
Naeem Clark and his brother Terry Lemon were both playing dice with Mason before the shooting. Clark knew Mason from the neighborhood and looked up to him as he was growing up. Clark had known Roderick Armstrong for years, and defendant for approximately three weeks prior to the shooting. During that time period, Clark had seen defendant on almost a daily basis.
After the shooting, Clark ran to his car and started to drive away. Defendant opened the back door and tried to enter Clark's car, but Clark drove off before he could get in.
A few weeks after the shooting, Clark saw defendant and noticed that he had new tattoos under his eyes of a teardrop and his nickname "Taz." The State proffered that Clark would testify that a tattooed teardrop under the eye was a symbol indicating that the wearer had killed someone. The judge conducted a Rule 104 hearing. Clark testified out of the presence of the jury that a tattoo of a teardrop indicated that either someone died in your family or you had killed someone. Clark was subject to cross-examination during the hearing. The judge permitted the testimony on the condition that the State not suggest that a teardrop tattoo indicates any association with a gang.
Clark testified at trial, "To me, a teardrop mean[s] like you killed somebody or somebody passed in your family." He further explained that "anybody can get one" for any other reason as well. On cross, Clark admitted that he did not know for sure why defendant got his teardrop tattoo, but stated, "I think he got it for a murder that he . . . committed."
Defendant confirmed the significance of his teardrop tattoo in a conversation with Breon Austell. Austell grew up with both Armstrong and defendant. At the time of trial, Austell was awaiting sentencing on aggravated assault and weapons charges. As a result of his cooperation, the State agreed to reduce his jail exposure by at least two years.
In mid-May 2008, shortly after the shooting, Austell saw defendant in a store speaking with some young men and describing himself to them as a "head buster." Defendant then told Austell, "What the fuck wrong with them, with them young boys, they should know I put in work, they see what I did up the street." Austell took this statement to mean "[t]hat he killed a dude up the street . . . [on] Kirkbride and New Willow." Austell understood defendant's words to be an explicit admission that he killed Richard Mason.
Austell told defendant that the word on the street was that someone else had killed Mason. Defendant then said, "No, I did it." Defendant explained that he was the only person with a gun at the scene. Defendant also told Austell that he intended to get a teardrop tattoo, which Austell interpreted as indicating that defendant had been involved in a "killing." Austell knew of no other reason to get a teardrop tattoo.
A few weeks later, Austell saw defendant and noted he had new tattoos under his eyes with his nickname, "Taz," and a teardrop. At that time, defendant told Austell that "[t]he chain was fake and that he sold the watch." Austell understood this to be a reference to the chain and watch defendant had taken from the man he killed on Kirkbride and New Willow.
The State negotiated a plea agreement with Armstrong and he agreed to plead guilty to first-degree robbery on this matter and to an unrelated carjacking, and testify against defendant in return for an aggregate twenty-year sentence.
Before Armstrong testified, the judge conducted another Rule 104 hearing on defendant's application to impeach Armstrong's credibility with evidence that he falsely implicated defendant as an accomplice in an unrelated carjacking when the victim identified Armstrong as the sole perpetrator. The State indicated that if such evidence was presented, it would explain Armstrong's actions with proof that both Armstrong and defendant were members of a street gang, and defendant, who held a leadership position in the gang, had ordered Armstrong to do the carjacking. The judge ruled that the undue prejudice likely to flow from any mention of defendant's gang affiliation would substantially outweigh its probative value, and instructed the State to "sanitize" Armstrong's testimony by allowing him to testify about being afraid of defendant, but without any gang references. The judge also permitted Armstrong to testify to the appearance of defendant's teardrop tattoo after the homicide, but not speak to its meaning.
Armstrong testified that on May 4, 2008, he received a call from defendant asking him to "come hold him down," which Armstrong understood to mean "watch his back . . . while he was about to go commit a crime." Defendant did not indicate what crime he intended to commit. Armstrong agreed to meet him on New Willow Street. When he arrived, defendant told him to "watch his back, we're about to go rob a dice game." Armstrong claimed he did not know defendant was armed until defendant pulled his gun on the players.
Armstrong testified that as they approached the game, defendant "whipped out the revolver" and said "[d]on't move." Mason then attempted to run away and defendant chased him. Armstrong confirmed that he saw defendant fire three shots at Mason. Armstrong then ran "because [he] knew that [shooting] wasn't the plan; that wasn't supposed to happen." He did not see where defendant or the other players went, as they all scattered in different directions.
Approximately one week later, Armstrong saw defendant. Defendant asked Armstrong, "[D]id he do it right?" which Armstrong understood as "[m]eaning, did he . . . complete the job, complete the mission" of killing Mason. Defendant also asked Armstrong if anyone else knew about the killing, to which Armstrong replied, "Don't worry about nothing. Nobody knew nothing." After that meeting, Armstrong met defendant again and noticed that defendant had gotten "Taz" and a teardrop tattooed on his face.
Defense counsel attempted to discredit Armstrong by asking why he implicated defendant in the carjacking charge even though defendant was never charged and the victim identified Armstrong as the sole perpetrator. On re-direct, Armstrong said that it was defendant's idea to do the carjacking and defendant had supplied Armstrong with the gun to commit it.
Defense counsel requested a sidebar, and after lengthy argument from both sides, the court instructed the jury to disregard the question and answer regarding the gun.
Defendant called two witnesses but did not testify. On July 19, 2013, the jury returned guilty verdicts on all counts.
On appeal, defendant raises the following points:
POINT I
THE COURT WAS WRONG IN PERMITTING TWO WITNESSES TO OPINE AS TO THE MEANING OF A TEARDROP TATTOO BECAUSE THE TESTIMONY WAS OUTSIDE THE RANGE OF PERMISSIBLE LAY OPINION.
POINT II
WHEN OTHER CRIME EVIDENCE INVOLVING THE DEFENDANT IN AN UNRELATED CARJACKING WAS INTRODUCED AT TRIAL, THE COURT FAILED TO ISSUE THE APPROPRIATE N.J.R.E. 404(b) LIMITING INSTRUCTION TO ADDRESS THE PREJUDICE. (PARTIALLY RAISED BELOW)
POINT III
IN SUMMATION, THE PROSECUTOR CITED THE STREET VIOLENCE IN TRENTON AND THE CRIMINAL BACKGROUND OF THE URBAN WITNESSES AS FACTORS TO CONSIDER IN DECIDING TO CONVICT THE DEFENDANT, THE INFERENCE BEING THAT A CONVICTION WOULD HELP LAW ENFORCEMENT CLEAN UP THE CITY. (NOT RAISED BELOW)
POINT IV
THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO INSTRUCT THE JURY ON HOW TO EVALUATE THE DEFENDANT'S ORAL OUT-OF-COURT STATEMENTS AND TO USE CAUTION IN SAID EVALUATION. (NOT RAISED BELOW)
POINT V
THE SENTENCE OF 60 YEARS, 85% TO BE SERVED BEFORE PAROLE UNDER NERA, WAS MANIFESTLY EXCESSIVE AND THE RESULT OF THE COURT'S IMPROPER ASSESSMENT OF SENTENCING FACTORS.
After the briefs were filed, we granted defendant's motion to supplement the record, and he provided a transcript of a status conference in an unrelated matter, State v. Shaheed L. Brown, Ind. Nos. 14-11-1803 and 14-07-876, presided over by the same judge who sentenced defendant. Brown was charged with homicide under one indictment and a drug charge in the other. There was discussion of a plea offer of forty-five years made by the State to Brown to resolve the homicide charge. The judge made the following statement:
THE COURT: Okay? Because if the jury is going to decide his guilt or innocence and if he — the jury convicts him, he won't be facing 45 years NERA, I always give defendants convicted by a jury a minimum of 60 years NERA, and you can check my record. So, you know, this —
MR. HEYBURN: Okay.
THE COURT: I know as much as Mr. Brown thinks 45 years NERA is unacceptable my sentence, if he's convicted, and Mr. Brown
you're presumed innocent, my sentence which will be much more than 45 years NERA. It'll be consecutive to the . . . [offenses] you're convicted of by a jury.
In addition, defendant submitted judgments of conviction from three other defendants who were sentenced by the same judge to sixty or more years in prison after being found guilty of murder. Defendant argues that the sentences, when considered with the judge's statement in Brown, indicates that he has engaged in a "results-oriented approach" to sentencing "rather than properly weighing the aggravating and mitigating factors" in defendant's case.
II.
A.
Defendant's first claim is that the trial court improperly permitted Naeem Clark and Breon Austell to testify to their understanding of defendant's teardrop tattoo, because they were not qualified as expert witnesses in gang culture. Defendant further claims that Clark and Austell's tattoo testimony violated his rights to confront the witnesses against him, to due process, and to a fair trial.
We note certain fundamental principles that inform our analysis of the issue presented. Our rules of evidence generally promote admissibility of all relevant evidence. State v. Harris, 209 N.J. 431, 439 (2012) (citing N.J.R.E. 402). A trial court's evidentiary rulings are subject to limited appellate scrutiny and are entitled to our deference absent a showing of an abuse of discretion. Ibid.
Lay opinion testimony is governed by N.J.R.E. 701, which permits a lay witness's "testimony in the form of opinions or inferences . . . if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Before lay opinion evidence is admitted, the judge must make a preliminary determination that the opinion is rationally based on the witness's perceptions and will aid the fact-finder. State v. McLean, 205 N.J. 438, 456 (2011). The Rule does not permit a witness to offer a lay opinion on a matter not within the witness's "direct ken" or when the jury is as competent as the witness in forming the conclusion. Id. at 459.
Lay opinion testimony may be used to aid the jury in understanding the meaning of street slang. State v. Johnson, 309 N.J. Super. 237, 262-64 (App. Div.), certif. denied, 156 N.J. 387 (1998). In Johnson, the defendant asked a friend to help steal a car. Id. at 262. When the friend declined, defendant Johnson said, "I'm going to get paid." Ibid. The defense objected when the prosecutor asked the friend at trial to explain his understanding of the phrase "get paid" to the jury. Id. at 262-63. The judge required the prosecutor to provide a factual foundation and elicited that "although [the friend] had never previously heard defendant use the phrase, he had heard it used by both white and black contemporaries on the streets in Piscataway and by other inmates when he was in jail as a common expression to mean getting money or sex." Id. at 263.
Johnson appealed the admission of this testimony, but we found no abuse of discretion:
The trial court correctly found that [the friend's] knowledge of the term "get paid" was based on his having heard the term on the streets of Piscataway and in prison and properly confined the testimony to [his personal] understanding as opposed to speculation about defendant's knowledge of the phrase. Moreover, since "get paid" was a slang term unfamiliar to the average juror, [his] lay opinion testimony was of assistance in determining the meaning and context of his conversation with defendant and was obviously relevant to the issue of defendant's motive and intention.
[Ibid.]
After defendant objected to the testimony of Austell and Clark as to the meaning of a teardrop tattoo, the judge conducted Rule 104 hearings and determined that there was a proper foundation for both witnesses. As to Clark, the judge found,
It appears [that] he grew up in the Donnelly Homes and is familiar with certain street culture that may not be as prevalent in other areas of Mercer County outside the City of Trenton, but he indicates he clearly understands that individuals in his neighborhood, in the Trenton area, in particular, can get teardrop tattoos for different reasons . . . .
Therefore, it's pretty clear that this witness, Mr. Clark can make reference to [a] teardrop tattoo without any reference to any membership in a gang or indicating that it's because of membership in a gang.
Clark later testified on direct examination to the teardrop tattoo:
Q: What did you understand [defendant's] teardrop tattoo to mean?
A: To me, a teardrop mean like you killed somebody or somebody passed in your family.
Q: Okay. Having seen him shoot Richard Mason, why did you — what did you understand the reason that Mr. McFarlane had that tattoo?
A: That he killed somebody.
Clark's testimony on the teardrop tattoo was subject to vigorous cross-examination:
Q: You say — you testified that the teardrop on Mr. McFarlane's eye has several reasons; am I correct?
A: Yeah.
Q: Okay. It could be for, as you said, killing somebody, right?
A: Uh-huh.
Q: It could be for a family member that had died, correct?
A: Yeah.
. . . .
Q: It could be that someone is just imitating another person, right?
A: I don't know what imitating the person would be because a person can get a tattoo just to have it.
Q: So you're saying that someone might just get a tatt — a teardrop tattoo just to have one, right?
A: Yeah, anybody can get one. You can get one.
Q: It might look pretty good. So when you say that it was for — that Patrick got this tattoo for a killing, you don't know why he got it, right?
A: No, I don't know why he got it.
Q: Okay. It could have been for a family member that died, right?
A: Yeah.
Q: It could have been for any other reason that we just talked about, right?
A: Yeah.
Q: So when you say you know for sure why he got it, that's not truthful, is it?
A: I don't believe I said that. I believe I said I think he got it for a murder that he did — committed.
Q: So you don't know?
A: No. I just know he got a teardrop tattoo.
The judge also conducted a Rule 104 hearing with Austell and previewed his proffered testimony. Before permitting Austell's testimony, the judge confirmed that his testimony was based on information gleaned "from growing up in the City of Trenton" by personal observation, and instructed him not to mention gangs in any way. When Austell testified, he complied with these limitations:
Q: [D]o you recall if he said anything else about what he might be doing in the future?Austell then testified that he saw defendant with the teardrop and "Taz" tattoos on his face a few weeks later.
A: He was going to get a tattoo.
Q: Did he say what kind of tattoo he was going to get?
A: Teardrop.
Q: And what did you understand — when he said he was going to get a teardrop tattoo, what did you understand that to mean? Why would he get a teardrop tattoo?
A: For a body.
Q: When you say "for a body," you mean what?
A: Homicide. Killing.
The testimony of Clark and Austell did not exceed the bounds of permissible lay opinion as it was based on their personal observations and aided the jury in determining whether defendant's display of a teardrop tattooed under his eye shortly after his murder of Mason was a garish and exhibitionistic declaration that he should be recognized as someone who had taken the life of another. Surely, defendant's conversation with Austell, where he reacted emphatically at the suggestion that someone else had been responsible for Mason's murder, if believed by the jury, fully supports this conclusion.
B.
Defendant next challenges the judge's instructions to the jury after Armstrong's testimony that defendant had given him the gun he used to commit a carjacking. Defendant claims that, in addition to striking the statement and issuing an immediate curative instruction, the court should have issued the standard 404(b) limiting instruction in the final jury charge.
After conducting a Rule 104 hearing before Armstrong's testimony, the judge ruled that defendant could cross-examine Armstrong on the truthfulness of his statement to the police. The judge cautioned the State that if it attempted to rehabilitate Armstrong, it would be limited to testimony that he felt pressured by or was afraid of defendant. No gang references would be permitted.
In cross-examining Armstrong at trial, defense counsel attacked Armstrong's credibility with the carjacking statement:
[Defense]: And when you spoke to Detective Jones, you actually accused Patrick McFarlane of being involved in that carjacking, didn't you?
[Armstrong]: I didn't accuse him.
[Defense]: You didn't?
[Armstrong]: No.
[Defense]: You didn't say Patrick McFarlane was involved in the carjacking?
[Armstrong]: Yes.
[Defense]: Okay. Patrick McFarlane was never charged with the carjacking; am I right?
[Armstrong]: No.
[Defense]: He wasn't your co-defendant in your carjacking case, was he?
[Armstrong]: No.
[Defense]: The police didn't believe you, did they?
[Prosecutor]: Objection.
[The court]: Sustained.
On re-direct, the prosecutor attempted to rehabilitate Armstrong by eliciting the reasons why he implicated defendant:
[Prosecutor]: Now, you were asked whether you falsely accused Mr. McFarlane of being involved in a carjacking back in July of 2008. Do you remember that question?
[Armstrong]: Yes.
[Prosecutor]: And your response was, no, you didn't falsely accuse him?
[Armstrong]: Yes.
[Prosecutor]: Who provided — now, what — did you use a gun during that carjacking?
[Armstrong]: Yes.
[Prosecutor]: Who provided you with the gun?
[Armstrong]: McFarlane.
[Prosecutor]: Did — was it your idea to do the carjacking or was it the Defendant's idea to do the carjacking?
[Armstrong]: The Defendant.
[Prosecutor]: After you saw him kill Richard Mason, did you feel pressured to do what he asked you to do?
[Armstrong]: Yes.
[Prosecutor]: So even though he wasn't charged by the police, was he involved in that carjacking or wasn't he?
[Armstrong]: He was.
. . . .
[Defense]: Judge, I'm going to object to this line of questioning and actually I would like to be heard at side bar.
After the sidebar conference, the judge determined that the probative value of the gun statement did not outweigh the prejudicial effect and that a curative instruction was appropriate. When defense counsel continued to protest, the court asked, "Well, what else do you want me to do?" to which defense counsel replied, "I don't know, Judge. I am thinking." The court then issued the following curative instruction:
Ladies and gentlemen, there was an objection to the very last question and answer; namely, as [the prosecutor] was asking Roderick Armstrong about the kidnapping, he brought out a fact that isn't it a fact that he, the Defendant, Patrick McFarlane gave you a gun to commit that carjacking.
I find that is not really relevant to your to your deliberations when you go to deliberate. And because of that, I am going to ask you to completely disregard that last question and last answer.
So what that means is when you go to deliberate, you can certainly consider everything that has just transpired . . . [except that] you are to just disregard that part where the witness indicated that he, Mr. McFarlane, gave him a gun to commit that carjacking.
At the outset, we reject the State's contention that the judge erred in sustaining defendant's objection to the State's attempt to have Armstrong testify that defendant provided him with the gun used in the carjacking. At the Rule 104 hearing preceding Armstrong's testimony, the judge prohibited the State from introducing evidence that defendant and Armstrong were members of the same gang and that defendant, who outranked Armstrong in the gang, had ordered him to commit the carjacking. The compromise the court reached was to permit Armstrong to testify that defendant asked Armstrong to assist him in the carjacking and Armstrong did so because he was intimidated after watching defendant shoot Richard Mason two months earlier. Defendant did not object to this ruling.
Although there was no indication at the hearing that the State would introduce evidence that defendant provided Armstrong with the gun used in the carjacking, the judge promptly sustained defendant's objection to the statement, struck the question and answer from the record, and gave an immediate curative instruction. The gun used in the carjacking was not mentioned again during the trial. Whether prejudicial testimony undermines the fairness of a trial or can be neutralized through a curative instruction is a matter "peculiarly within the competence of the trial judge." State v. Winter, 96 N.J. 640, 646-47 (1984). We are satisfied that any prejudice caused by Armstrong's statement was remedied by the prompt, forceful, and specific instruction provided by the judge to disregard the question and answer. See State v. Vallejo, 198 N.J. 122, 134 (2009) (holding that the trial judge neutralized the negative effects of inadmissible prejudicial evidence with instructions that were "firm, clear, and accomplished without delay"). The stricken testimony did not compromise defendant's right to a fair trial, and the judge's decision to deny his motion for a mistrial did not result in manifest injustice.
C.
Defendant next claims that two remarks made by the prosecutor in his summation were improper and merit a reversal. We disagree.
The first challenged comment was, "This case is a tragedy. Richard Mason is dead as a result of the senseless violence on the streets of Trenton." Mason was murdered as he fled a robbery of the participants in a dice game on the streets of Trenton. The prosecutor's characterization of his death as "a tragedy" resulting from "senseless violence" was not a call to clean up the streets of Trenton as suggested in defendant's brief. Rather, it was a reasonable and accurate description of a vicious and brutal act.
The second challenged comment described the type of witnesses the State expected to call:
Well, ladies and gentlemen, welcome to the streets of Trenton at New Willow and Kirkbride, at a dice game. The people there aren't going to be you and me. They are going to be people with criminal records. We don't . . . choose that. It is what it is.In challenging this comment, defendant omitted the portion immediately preceding it, which provides context:
What I have to pro[ve] to you is each and every element of each and every offense beyond a reasonable doubt. Perfection is not possible. . . . Let's think about what a perfect case would have been here. Video. We would have loved to have had that, right? That would have been great to have video. DNA; wonderful. Recovered handgun. Eyewitnesses with no criminal records.
We note that the prosecutor's remarks came after defense counsel argued in his summation,
The State has based its entire case on persons who have significant criminal histories, persons who only saw the benefit of helping themselves out of their own jams, persons who want to protect someone else.
The State offered them a reason to lie. The State cannot buy a verdict. They can't do it.
There was no objection at trial and we employ the plain error standard. R. 2:10-2. The prosecutor's comments were invited by defense attacks on the credibility and character of the State's witnesses. Considering the context in which the prosecutor's remarks were made, and the failure by the defense to object, we do not believe that defendant was prejudiced or that the jury's ability to rationally evaluate the evidence was impaired.
The prosecutor did not misstate facts or suggest that the jury had a duty to convict defendant to protect the community at large. Instead, the remarks represented a proper acknowledgment of the flaws of some of the witnesses the State was compelled to call. We perceive no prosecutorial misconduct, let alone misconduct so egregious that it deprived defendant of a fair trial.
D.
Defendant next argues that the court was required to instruct the jury on how to evaluate defendant's out-of-court, inculpatory statements pursuant to State v. Hampton, 61 N.J. 250, 271-72 (1972) and State v. Kociolek, 23 N.J. 400, 421-22 (1957). Defendant did not object to the court's failure to issue Hampton or Kociolek charges at trial, and we again employ the plain error standard in reviewing this claim. R. 2:10-2.
Kociolek requires that a jury be instructed to "receive, weigh and consider such evidence [concerning a defendant's oral statements] with caution," in view of the generally recognized risks of inaccuracy associated with oral statements. Kociolek, supra, 23 N.J. at 421.
A Hampton charge advises the jury that it is their duty to determine the credibility of defendant's out-of-court statements. Hampton, supra, 61 N.J. at 272. The Hampton rule was codified in N.J.R.E. 104(c), which states, "If the judge admits the [defendant's] statement[,] the jury . . . shall be instructed to disregard the statement if it finds that it is not credible."
In State v. Jordan, 147 N.J. 409, 425-30 (1997), the Court addressed both Hampton and Kociolek charges. As to Kociolek, the Court held that, given the risk of inaccuracy in communicating oral statements and risk of misunderstanding by the listener, Kociolek charges should be given, whether requested or not, whenever a defendant's oral out-of-court statements are admitted into evidence. Jordan, supra, 147 N.J. at 428. As to Hampton, the Court held that,
Whether requested or not, whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence the Hampton instruction, directing the jury to determine the credibility of the statements without any knowledge that the court has already determined the issue of voluntariness, should be given. By using the term "shall" in N.J.R.E. 104(c), we expressly recognized that a Hampton charge is required.
[Id. at 425.]
While "emphasiz[ing] that the Hampton and Kociolek charges are required," the Court ultimately held that failure to give either charge "is not reversible error per se." Id. at 430. Instead, the facts may show that such omissions are not capable of producing an unjust result, as where there was independent evidence of the defendant's guilt, the defendant admitted the truth of the statements, or the court's general credibility instructions were sufficient to properly instruct the jury on evaluating the statements. Id. at 425-26, 429. The Court has also held that extensive cross-examination of the witnesses, such as to explicate their credibility, may likewise suffice. See State v. Harris, 156 N.J. 122, 183 (1998).
Here, several of defendant's inculpatory out-of-court statements were admitted, including his request to Armstrong to watch his back when he recruited him to rob the dice game; his inquiry to Armstrong on whether he "did it right," interpreted as whether he killed Mason when he shot him; and his statements to Austell that he was a "head buster," that he shot Mason, that he was going to get a teardrop tattoo "for a body," and that he had sold the watch he took from Mason.
This, however, was not the most compelling evidence against defendant, as both Clark and Armstrong testified that they saw defendant shoot Mason. Indeed, on defendant's motion for a new trial, the court found that there was "overwhelming evidence" of defendant's guilt presented at trial.
The court gave the jury a seven-page instruction on eyewitness identification that included several discrete factors to consider in determining the reliability of the eyewitnesses' testimony, and a four-page instruction on witness credibility. In the credibility instruction, the court expressly noted that "[t]he law requires that the testimony of these three witnesses [Clark, Armstrong, and Austell] be given careful scrutiny."
We are satisfied that an independent analysis of the evidence of the defendant's guilt shows that the court's failure to issue Hampton or Kociolek jury charges was not capable of producing an unjust result. See Jordan, supra, 147 N.J. at 425-28. The eyewitness accounts and corroborating circumstantial evidence were alone sufficient to sustain defendant's conviction. The out-of-court statements at issue were made to non-police witnesses in non-custodial settings. Defense counsel's vigorous cross-examination and summation guarded against the risk that the jury would give too much weight to the State witnesses' testimony without evaluating their credibility. See Harris, supra, 156 N.J. at 183. We perceive no reversible error by the trial court in failing to issue sua sponte Hampton or Kociolek charges.
E.
We will consider defendant's excessive sentence argument together with the claim made in his supplemental brief that the judge employed a "results-oriented approach" to his sentencing.
Defendant claims that his sentence of sixty years, with eighty-five percent parole ineligibility, is manifestly excessive and the product of the court's improper assessment of sentencing factors. The sentencing range for first-degree murder is thirty years to life with a mandatory minimum of thirty years' parole ineligibility, N.J.S.A. 2C:11-3(b)(1), and an eighty-five percent parole disqualifier under NERA. N.J.S.A. 2C:43-7.2(d)(1). The sentencing range for first-degree armed robbery is ten to twenty years, N.J.S.A. 2C:43-6(a)(1), with an eighty-five percent parole disqualifier under NERA. N.J.S.A. 2C:43-7.2(d)(9).
The trial court found that aggravating factors three, six, and nine applied, as well as mitigating factor six. As to aggravating factor three, the risk that the defendant will commit another offense, the judge reviewed defendant's criminal record, including five juvenile petitions and five adult arrests. The court noted that defendant had been incarcerated since the age of sixteen, with the exception of one four-month period, during which he committed this murder and an unrelated first-degree robbery on July 24, 2008. The court concluded that there was "credible support that, given [defendant's] failure to comply with the laws of society, there is a risk that he will commit future offenses."
As to aggravating factor six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, the judge noted that defendant was convicted of robbery as a juvenile and first-degree murder and armed robbery as an adult.
The court placed great weight on aggravating factor nine, the need for deterring defendant and others from violating the law, and noted there was
no question that this Defendant, when he approached the dice game, and certainly from trial testimony, he had targeted Richard Mason, somehow knew that because he was working, he brought money to the dice game[.]
It certainly appears the Defendant ran after Mr. Mason and shot him; and, as a coward, shot him in the back, killing him. Thereafter, he took money from him, took his chain and took a watch.
The court gave "a small amount of weight" to mitigating factor six, the defendant will compensate the victim for damage or injury sustained, "if, during his incarceration the Defendant chooses to work and pursuant to N.J.S.A. 30:4-92, the warden at the state facility . . . take[s] one-third of his income and use[s] that to reimburse any restitution the Court has ordered."
Defendant claims he is a "youthful offender," but the court took his age into consideration. After initially considering the maximum term of seventy-five years, one of the reasons the judge imposed the lesser sentence of sixty years was because defendant was nineteen years old when he committed the offenses.
Defendant argues his sentence is excessive because this "incident did not involve especially heinous, cruel or depraved conduct toward the victim, who sustained unfortunately one fatal gunshot wound." Defendant shot Mason, who was unarmed, in the back as he was attempting to flee the robbery of a dice game. Any suggestion that this is not a heinous, cruel, or depraved offense is so completely devoid of merit that it warrants no further comment by us. R. 2:11-3(e)(2).
In his supplemental brief, defendant claims that a statement by the sentencing judge in an unrelated matter, that he "always give[s] defendants convicted by a jury a minimum of 60 years NERA," and judgments of conviction in three other murder cases where this judge imposed sixty-year sentences, suggests that the judge "may have taken a results-oriented approach in sentencing [defendant] rather than properly weighing the aggravating and mitigating factors."
The referenced comment was made during a case conference where the judge was discussing a plea offer of forty-five years to a different defendant charged with murder. The judge indicated that if the defendant rejected the plea offer and elected to go to trial, he would be facing a longer sentence if convicted. The transcripts of the three other murder cases, where the defendants received sixty-year sentences, were not provided to us and the reasonableness of those sentences is not before us. We find that the judge's statement and judgments of conviction in unrelated cases do not support defendant's claim that his sentence here was either excessive or arrived at in an arbitrary fashion. Even if the sentence imposed upon defendant is consistent with sentences the judge has imposed upon first-degree offenders in other cases, that does not mean that the judge's detailed analysis of the aggravating and mitigating factors here should be disregarded. We decline to construe the judge's passing comment in a different case as having any bearing upon our review of this record and the judge's well-supported sentencing decision.
As we have noted, the sentencing judge properly considered and adequately explained his reasons for finding the aggravating and mitigating factors here, and we discern no abuse of discretion in defendant's sentence. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on the aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION