Opinion
DOCKET NO. A-2427-08T4
08-05-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM SHEPHERD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Hayden and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, Indictment Nos. 06-02-0252, 06-02-0260 and 07-06-1052. Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
The Middlesex County grand jury returned Indictment No. 06-02-0252 (the "first indictment"), charging defendant William Shepherd with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); second-degree burglary, N.J.S.A. 2C:18-2 (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five). The grand jury also returned Indictment No. 06-02-0260, charging defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
At trial in 2007 (the "first trial"), the jury found defendant guilty of third-degree burglary, but could not reach a verdict on second-degree burglary while armed. Defendant was acquitted of attempted murder and aggravated assault, although the jury could not reach a verdict on the lesser-included fourth-degree offense of aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4). The jury also was unable to reach a verdict on the weapons charges.
The certain persons offense was not tried at that time.
Defendant's motions for judgment notwithstanding the verdict (JNOV) and a new trial were denied, although the judge concluded that re-prosecution of the second-degree burglary charge would violate defendant's rights under the double jeopardy provisions of the State and federal constitutions and dismissed that count.
On June 26, 2007, approximately one month after trial and before any retrial, the grand jury returned Indictment No. 07-06-1052 (the "second indictment"), charging defendant with third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count one); two counts of fourth degree obstructing the administration of law, N.J.S.A. 2C:29-1 (counts two and four); and fourth-degree witness tampering, N.J.S.A. 2C:28-5(a) (count three). During May and June 2008, defendant was retried on the assault and weapons charges, together with the charges contained in the new indictment (the "second trial"). The jury found defendant guilty of the witness tampering and obstruction of justice counts, but acquitted him on the remaining aggravated assault and weapons counts in the original indictment. Defendant also was acquitted of the certain persons weapons charge.
At sentencing, the judge merged the convictions on the obstruction charges with the witness tampering convictions and sentenced defendant to concurrent five-year terms of imprisonment with two-and-a-half years of parole ineligibility on each. He imposed a consecutive five-year sentence on the burglary conviction, with a one-year period of parole ineligibility. This appeal followed.
Defendant raises the following points for our consideration:
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm.
DEFENDANT'S MOTION TO DISMISS [THE FIRST INDICTMENT] WAS WRONGFULLY DENIED.
POINT II
IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL JUDGE TO JOIN THE WITNESS TAMPERING CHARGES WITH THE RETRIAL OF CHARGES FROM THE FIRST
TRIAL.
POINT III
THE TRIAL JUDGE ERRED IN CHARGING "MURDER" AS THE "OFFENSE" AND IN FAILING TO TAILOR THE MODEL JURY CHARGE ON BURGLARY TO ADDRESS THE ISSUE OF WHETHER DEFENDANT HAD PERMISSION TO ENTER THE PREMISES AS A RESULT OF HIS RELATIONSHIP WITH THE VICTIM, INCLUDING THE FACT SHE HAD GIVEN HIM A KEY TO THE APARTMENT.
POINT IV
IT WAS ERROR TO DENY DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL[, J]NOV AND A NEW TRIAL AFTER THE FIRST TRIAL AND HIS MOTION FOR ACQUITTAL AFTER THE END OF THE STATE'S CASE AT THE SECOND TRIAL.
POINT V
THE CUMULATIVE EFFECT OF THESE ERRORS WARRANTS A REVERSAL AND A NEW TRIAL.
POINT VI
THE EXCESSIVE SENTENCES AND THE IMPOSITION OF CONSECUTIVE SENTENCES WERE BOTH ABUSES OF
DISCRETION BY THE TRIAL JUDGE.
We have omitted the sub-point headings contained in defendant's brief.
I.
The first indictment dealt with events that occurred in the early morning hours of October 27, 2005. The State alleged that Carla May, and the father of her children, Lashon Bosket, were sleeping in May's apartment in North Brunswick at the time. Before the grand jury, Bosket testified that he awoke and saw a male dressed all in black standing by the bedroom door. The man said, "what's up," fired a shot and ran out of the apartment.
At some points in the record the name appears as "Boskett."
May testified that Bosket awoke her by saying, "call the cops. Somebody's shot." After the police arrived, she received a call from defendant, her ex-boyfriend, who said, "yeah, bitch, I'm gonna get you next." When asked by a grand juror, May denied that defendant had a key to her apartment and said that her door was locked on the night of the incident.
Before the grand jury, North Brunswick Police Detective John Ambrosino testified that after he arrived at the apartment, he found a bullet hole through the window above the headboard of the bed and a spent shell casing on the floor of the bedroom. He spoke to both May and Bosket at police headquarters, and they related what had occurred, with May telling him that defendant had called her after the shooting and said, "next time I won't miss." Defendant was arrested several weeks later.
A grand juror asked Ambrosino whether he had spoken to defendant after his arrest. Ambrosino replied, "He didn't want to give a statement." Ambrosino also told the grand jury that defendant had a key to the house. In response to another question, Ambrosino replied, "There was . . . a weapon recovered several weeks later[.]" When a grand juror asked if the weapon matched the shell casing found, Ambrosino said "it was the same type of weapon . . . ."
He added that after the shooting, defendant had called "a cousin of his and stated to the cousin, we also have a formal statement, that I just shot the place up, I don't know if I hit anybody, come and get me." A grand juror asked Ambrosino whether anyone had seen defendant in the house. He replied, "They both saw him." He then stated that May "believed it was him" but did not want to give a definitive statement, while Bosket would not say for sure.
In Point I, defendant contends it was error to deny his motion to dismiss the first indictment based on false evidence presented to the grand jury. Specifically, he argues that May falsely testified that defendant did not have a key to her apartment, which contradicted her testimony at the first trial that defendant did have a key. In addition, defendant argues that Ambrosino's testimony left several false impressions, specifically, that May and Bosket saw defendant at the time of the shooting, defendant did not give a statement to the police when in fact he did, and a gun related to the incident had been recovered when none was ever found.
Of course when defendant's motion to dismiss was made, May had not yet testified at the first trial, and our review of the transcripts reveals that defendant never asserted this as a basis to dismiss the first indictment. Instead, defendant's motion to dismiss the first indictment was premised on Ambrosino's testimony.
In denying defendant's motion, the judge noted he was "very troubled by the errors and erroneous information that was provided to the grand jury." Although the presentation was "sloppy and . . . unprofessional," the judge concluded Ambrosino's errors were not "fatal to the indictment." The judge explained:
The issue of the inquiry . . . is whether or not the error[s] had such an effect to create so much prejudice that they had the effect of altering the decision to indict; in other words, that but for the erroneous information, there would not have been an indictment. . . . And that really can't be said here.
"Once the grand jury has acted, an indictment should be disturbed only on the clearest and plainest ground, and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (quotation omitted). An indictment may be dismissed if the prosecutor's misconduct "is extreme and clearly infringes upon the [grand] jury's decision-making function[.] State v. Murphy, 110 N.J. 20, 35 (1988) (alteration in original) (quotation omitted). Only where the violation substantially influenced the grand jury's decision to indict, or if there is grave doubt that the determination ultimately reached was arrived at fairly and impartially, will an indictment be dismissed. State v. Engel, 249 N.J. Super. 336, 360 (App. Div.), certif. denied, 130 N.J. 393 (1991). The conduct of the prosecutor must not subvert the grand jury process. Ibid. We review a decision on a motion to dismiss an indictment for an abuse of discretion. State v. Triestman, 416 N.J. Super. 195, 220 (App. Div. 2010).
In this case, if Ambrosino's erroneous testimony is omitted, there was clearly enough evidence for the grand jury to find probable cause that defendant had committed the crimes for which he was charged. Hogan, supra, 144 N.J. at 227. While Ambrosino's errors are not to be condoned, the standard we apply is whether the grand jury would have reached a different result "but for" the erroneous evidence. Triestman, 416 N.J. Super. at 202 (quotation omitted). Given the rest of the testimony adduced before the grand jury, we cannot conclude that the trial judge mistakenly exercised his discretion in denying defendant's motion to dismiss.
II.
We summarize the evidence adduced at the first trial in order to address the arguments raised in Points III, IV and V of defendant's brief.
Bosket testified that on October 27, 2005, at about 3:00 a.m., he awoke to see someone standing by the bedroom door, dressed in black with a "hoody" covering his head. The individual said "what's up," and fired a shot. A bullet went through a window over the headboard of the bed. Bosket testified that the shot was fired at the window and not at him. He did not identify defendant as the shooter and believed defendant had no reason to harm him.
May awoke to the sound of the gunshot but did not see the perpetrator. She ran into the bathroom and called the police. When police responded, Bosket told them that "we just got broken into." The officers observed the bullet hole through the window, and they found a .380 automatic shell casing on the floor of the bedroom. No bullet was recovered.
May told police that defendant, her ex-boyfriend with whom she had lived for a time, had been calling her continuously, and she rejected his request to come to her apartment on October 26. Defendant called her after the shooting and before police arrived. He told May that he thought he had shot Bosket and said, "I'm going to get you next. I'm gonna kill your ass. And I ain't missing this time." Defendant told May that he had gotten into the apartment using a key to the top lock that she had given him, and a credit card to open the bottom lock. May denied ever giving defendant permission to enter the apartment, and she testified that defendant and Bosket had had a fight outside her apartment building a few days earlier.
At the time of the incident, defendant was living with his cousin, Lachelle Powell. She testified that at around 3:00 a.m. on October 27, 2005, she received a phone call from defendant, who told her that he had "just got[ten] into it" with May. He told Powell that he had "shot through the window."
Before the first trial, defendant sent Powell a letter dated March 30, 2007, in which he said that he knew she had received a subpoena to testify and that she should not do anything "stupid." He told her that she could not go to court, go to court and refuse to take the oath, or testify that the police had coerced her into providing statements about defendant's after-the-shooting phone call.
Defendant was arrested on December 13, 2005, and gave a statement to the police the following day. He admitted entering May's apartment with a gun at 3:00 a.m. on October 27. Defendant had been calling May all day, and because she did not answer, he thought something was wrong. Defendant used the key May had previously given him to enter. He did not know Bosket was there, and as Bosket awoke and moved toward him, defendant fired to "back [him] up" but never intended to fire at Bosket.
An audiotape of the statement was played for the jury in its entirety; however, the parties could not agree to a transcription of the statement and none was used at trial. The audiotape is part of the appellate record.
Defendant testified at trial and essentially denied being involved in the incident at all, including not being present at the house. He claimed that the police told him what he should say in order to minimize his involvement. Defendant then "gave it some extra additives . . . to make it sound good." He also claimed that May had implicated him because she was angry that he was having contact with another woman who was pregnant with his child. According to defendant, Powell lied because she was trying to get her daughter back from child welfare services. Defendant wrote the letter to Powell to convince her not to testify falsely.
A.
At the end of the first trial, the judge essentially provided the jury with Model Jury Charge (Criminal), "Burglary in the Third Degree (N.J.S.A. 2C:18-2a)," (Revised 11/10/97). In part, the judge said:
In order for you find the defendant guilty of the crime of burglary, the State must prove beyond a reasonable doubt . . . that . . . defendant entered the structure . . . without permission. And that . . . defendant did so with the purpose to commit an offense therein. . . . Purpose to commit an offense means, that . . . defendant intended to commit an unlawful act inside the structure. The unlawful acts allegedly intended are murder and/or aggravated assault.Defendant argues for the first time on appeal that these instructions constitute plain error because the jury was told that one of the intended unlawful acts was murder, even though defendant had not been charged with murder, and because the court did not sufficiently tailor the burglary instruction to the facts of the case. We disagree.
"Because defendant failed to object to the instruction at trial and raised it for the first time on appeal, we consider this issue under the plain error rule." State v. Torres, 183 N.J. 554, 564 (2005) (citing R. 2:10-2). "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57 N.J. 325, 333-34 (1971)).
Defendant was charged with attempted murder, not murder. However, the judge's omission of "attempted" in the burglary charge could not have misled or confused the jury since his final instructions included a charge on attempted murder, to which defendant lodged no objection.
Defendant also maintains that the judge should have commented on the evidence adduced at trial that he had a key to May's apartment, relating that evidence to whether the State had proven beyond a reasonable doubt that defendant lacked express or implied authority to enter May's apartment. "The need to comment on the evidence arises when an instruction modeled solely on the language of the applicable statute . . . will not adequately guide the jury's deliberations." State v. Reddish, 181 N.J. 553, 612 (2004) (citation omitted). That was not so in this case. The judge told the jury that it had to determine whether defendant had entered the premises "without permission." As noted, at trial, defendant denied ever entering the apartment, so it is understandable why there was no objection to the charge as given. More importantly, May was cross-examined about having previously given defendant a key, and the jury understood it was necessary to decide not whether defendant possessed a key, but rather whether he entered the apartment without permission. See Model Jury Charge (Criminal), supra.
B.
In Point IV, defendant argues that it was error to deny his motions for a judgment of acquittal, and a new trial or judgment notwithstanding the verdict (JNOV) during the first trial. He contends that because the jury failed to convict of any substantive offense, he cannot be guilty of burglary. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). As we said long ago, a burglary is complete upon an unlicensed entry with the purpose of committing an offense, "irrespective of whether an offense [wa]s committed." State v. Mangrella, 214 N.J. Super. 437, 441 (App. Div. 1986), certif. denied, 107 N.J. 127 (1987).
Any claim of cumulative error in the first trial also lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).
III.
We turn our attention to the second indictment and second trial, and the issues relating to both that defendant argues compel reversal. The factual predicates for the second indictment were two letters defendant sent to May dated November 15, 2006, and March 28, 2007. To place the issues in proper context, we briefly refer to the substance of the letters, which were produced at the second trial.
May recognized the letter dated November 15, 2006 as being in defendant's handwriting. It said:
I want you to holla [sic] at my lawyer and give him another statement saying the Police made you say the shit you said and that all you said was somebody shot in your house and you were asleep. As for me calling [and] threatening you the cops said you had to say that.May also received legal material regarding witness recantation with defendant's handwritten notations including, "Baby, it's the law. Trust me you can't get in trouble," and "That's why I told you to give my lawyer another statement to fuck up they [sic] case."
May received a letter from defendant dated March 28, 2007, which stated:
I just got my Grand Jury transcript . . . . I respect how you tried to hold me down. That Prosecutor is a trip!! I know she probably put shit in the game to make you flip. And right now I know she coming [sic] at your hard because without you there's NO CASE!!. . . . They had to go off of the [p]hone [c]all shit. You can flip that though [and] say you're not 100% sure it was me who called. And the [c]op made you say it was [m]e after you told him you weren't sure . . . .
A.
In Point II, defendant maintains it was error to permit the counts of the first indictment that were mistried to be re-tried together with the second indictment. He claims the witness tampering charges were not dependent on any evidence regarding the shooting, and the State used the charges in the first indictment impermissibly to bolster those in the second resulting in prejudice.
In denying defendant's motion for separate trials, the judge observed that the charges in the first indictment were "inextricably intertwined" with the witness tampering charges. He reasoned that "those pieces of evidence," the letters, "[would] be admissible anyway at the trial of the [first] [i]ndictment . . . ." We agree completely with the judge's analysis and reject defendant's claims.
A court may order two or more indictments or accusations to be tried together if the offenses could have been joined together in a single indictment or accusation. R. 3:15-1(a). However, Rule 3:15-2(b) provides that "[i]f . . . it appears that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses . . . the court may order an election or separate trials of counts . . . ."
"Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Chenigue-Puey, 145 N.J. 334, 341 (1996) (alteration in original) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). If the evidence could be admitted at both trials, the offenses may be consolidated because a defendant cannot claim prejudice. Ibid.
N.J.R.E. 404(b) provides:
Other crimes, wrongs, or acts. Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Witness tampering requires the actor to engage in certain conduct, "believing that an official proceeding or investigation is pending or about to be instituted or has been instituted . . . ." N.J.S.A. 2C:28-5(a). Thus, by its very nature, witness tampering requires that the jury know about some other proceeding or investigation. See State v. D.A., 191 N.J. 158, 169-170 (2007) ("N.J.S.A. 2C:28-5 addresses action taken after one is already the focus of, or believes he may be the focus of, an official proceeding." (emphasis removed)). In this sense, evidence of the prior burglary and alleged shooting was intrinsic evidence of the witness tampering charge. State v. Rose, 206 N.J. 141, 163 (2011).
Even if we are wrong about that assessment, there is no doubt that the letters would have be admissible in the retrial of the first indictment because, pursuant to N.J.R.E. 404(b), they proved defendant's "knowledge" of the shooting and his "plan" to avoid prosecution for those charges. Ibid.
B.
At the second trial, when the State rested, defendant moved for a judgment of acquittal on the witness tampering counts, arguing that the letters only reflected his emotional attraction for May, and no reasonable jury could conclude his intent was to tamper with her as a witness. The judge denied the motion.
Defendant reiterates the same argument before us. It lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). Viewing the State's evidence in its entirety, and giving the State the benefit of all reasonable inferences, State v. Reyes, 50 N.J. 454, 459 (1967), a reasonable jury could have found defendant guilty of witness tampering beyond a reasonable doubt.
Similarly, the claim made in Point V regarding cumulative error in the second trial warrants no discussion in a written opinion. R. 2:11-3(e)(2).
IV.
In Point VI, defendant argues that his sentence was excessive.
The judge found aggravating factors three, six and nine. See N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (6) (the seriousness of the offenses for which defendant had been convicted; and (9) (the need to deter). He found no mitigating factors. The judge sentenced defendant to consecutive terms of five years, with one year of parole ineligibility, on the burglary conviction, and five years, with two and-a-half years of parole ineligibility, on the witness tampering conviction. The judge declined to sentence defendant to an extended term as a persistent offender. N.J.S.A. 2C:44-3(a).
Defendant first contends that the judge should have found mitigating factors one, two, three, four, five, eight, eleven and twelve. See N.J.S.A. 2C:44-1(b) (1) (his conduct did not cause serious harm; (2) (he did not contemplate serious harm); (3) (he acted under strong provocation); (4) (there was an excuse); (5) (the victim induced the offense); (8) (these offenses occurred in circumstances unlikely to recur); (11) (imprisonment would entail extreme hardship to his family); and (12) (he cooperated with law enforcement).
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984) (citation omitted); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
The judge's finding as to aggravating factors three, six and nine is unassailable. Defendant had five prior juvenile adjudications and three prior indictable convictions. Defendant's criminal conduct in this case struck at the core of the justice system. None of the mitigating factors, only some of which were urged at trial, find support in the record. We find no basis to upset the length of the sentences imposed.
Defendant also contends that the judge failed to state his reasons for imposing consecutive sentences. We do not agree.
In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court set forth the factors to be considered when deciding whether to impose consecutive or concurrent sentences. The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)). Although a statement of reasons necessarily assists our review, where appropriate, consecutive sentences may be affirmed if the "facts and circumstances leave little doubt as to the propriety of the sentence imposed." State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.), certif. denied, 177 N.J. 492 (2003).
In imposing consecutive sentences on the burglary and witness tampering convictions, the judge stated:
Although they are third degree offenses, these are very serious crimes which go to the heart of the purpose of the criminal justice system, specific attempts by this defendant to derail that process not once but on two occasions. . . . I make these observations because the record should be clear that I find these to be very serious offenses, particularly in the context of witness tampering . . . .
The judge found "a significant need to . . . literally keep[ defendant] locked up to keep society safe."
Here, defendant was convicted of burglary and witness tampering, the latter occurring after defendant's arrest. The crimes occurred at different times, and involved different victims, in that the witness tampering statute is intended "to 'deter conduct that affects the integrity of the criminal justice system.'" D.A., supra, 191 N.J. at 167 (quoting Model Penal Code and Commentaries: Part II, § 241.6 (1980)). The judge did not abuse his discretion by imposing consecutive sentences.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION