Opinion
DOCKET NO. A-5445-12T3
01-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EUGENE STEVENS, a/k/a EUGENE STEVENS III, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-06-1411. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried to a jury, defendant Eugene Stevens was convicted of one count of third-degree hindering his own apprehension. N.J.S.A. 2C:29-3(b)(1). The jury found defendant not guilty of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b), and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) in connection with the killing of Jihad Springer. Defendant was sentenced to a one-year term of probation and appropriate fines, assessments, and penalties.
He appeals his conviction, raising two points:
POINT IWe have considered these arguments in light of the record and the applicable legal principals and find them unpersuasive. We therefore affirm.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY. (PARTIALLY RAISED BELOW).
POINT II
THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF HINDERING HIS OWN APPREHENSION OR PROSECUTION WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE. (NOT RAISED BELOW).
I.
On the night of August 14, 2009, Alfateem Johnson was standing on Chadwick Avenue in Newark waiting for a cab to take him home. When his friend Jihad Springer drove by, Johnson asked Springer for a ride. Springer agreed, but along the way stopped at a house on Hudson Street with which Johnson was not familiar. Springer knocked on the front door and a man with dreadlocks let him in. Johnson followed Springer into the house and noticed three men and three women inside. At some point, Johnson heard an argument followed by three gunshots. One of the bullets struck Johnson in his right hand and he ran for the door. Springer, who had been shot multiple times, followed Johnson out of the house but fell just past the front steps. Springer remained down and later died from the gunshots.
When the police arrived they found a body later identified as Springer at the bottom of the steps to the Hudson Street house. They followed a blood trail from the body to a first-floor apartment in the three-family house.
Defendant and his roommate, Andre Meadows, lived in the apartment, but were gone by the time police arrived. At trial, Meadows testified that on the night of the shooting he was in the apartment with defendant, Manny Calderon, Jerome Monroe, and Melvin Boyd. Meadows was playing video games and watching television in defendant's bedroom with Calderon, Monroe, and Boyd. He went to bed around 11:00 p.m. and awoke with a gun to the back of his head and someone asking, where his money was. When Meadows asked, "What money?" the gunman struck him in the head with the butt of the gun and again put the gun to his head. At that point, Meadows heard a gunshot and the person in his room left. Meadows walked toward the hallway and heard two more shots. Meadows left the house, jumping over Springer's body after he walked down the steps. When he reached his car, Meadows saw Monroe, who got into the car. After dropping Monroe at his home, Meadows drove to his girlfriend's home in Montclair.
Calderon testified that on the night of the shooting, he was in defendant's bedroom with defendant, Monroe, Meadows, Boyd and two women. After Meadows left to go to his room, Calderon noticed a man with a gun and a bandanna over his face standing in the doorway. The gunman hit Calderon on the side of his head with the gun and asked the group where the money was. Calderon testified that defendant pulled a gun from under his bed and Calderon heard four shots fired. Calderon and the others then left the home. As Calderon was walking out, he saw the body of the gunman with the bandanna lying on the ground by the front steps.
Christine DeJoie and Nicole Estrada testified that they were in defendant's bedroom at the time of the shooting. DeJoie described the gunman as wearing a bandanna and confirmed that he said something about cash before firing his gun. Estrada heard the gunman say, "Where's the money?" Both women heard five to seven shots. After the gunman left, everyone who was in defendant's bedroom also left. DeJoie saw defendant holding a gun as he left the room.
After the shooting, DeJoie and Estrada left the apartment and were walking toward a bus stop to go home when defendant drove up and told them to get in his car. He then drove them home. Defendant then drove Boyd and Calderon to his parents' house in Trenton. Along the way, defendant stopped the car and Boyd threw a gun into the Delaware River.
II.
Defendant claims that remarks made by the prosecutor during his summation were improper and denied him a fair trial. As the four challenged passages from the summation are brief, we reproduce them here:
[PROSECUTOR]: If you did nothing wrong, why hinder your own apprehension? If it's as clearcut as Defense would like to make it, why tamper with evidence? If all of you are telling the truth, why conceal witnesses?
And that's what we have here, Ladies and Gentlemen. And I submit to you that, using your common sense, when you go about deliberating, really think about it. Why would this defendant throw that gun away if it would show that he did nothing wrong inside that apartment? Why would he not call the police right away and say, oh, my God, I was being robbed, I had to defend myself, come quickly, because all this evidence is going to show I did nothing wrong, and I want to make sure you find all the people that saw this?
. . . .
And, again, using your common sense, if [you did] nothing wrong, if it's as clearcut as some would like you to believe, why would you dump that gun in the river? Isn't that gun going to show exactly what you're saying? Isn't that gun going to prove what you're trying to assert?
. . . .
There's a reason why they drove to Trenton. Manny Calderon could have quite easily just have gone home. Jerome Monroe was already home. Same with Melvin Boyd. Why did they all agree to go to Trenton? They all wanted to get their stories straight.
. . . .
And Mr. Rotella is correct; the burden is on the State, and at no point would we ever shift the burden on the Defense, but the whole reason why tampering with evidence, why hindering prosecution are crimes is because of situations like this.
You had an individual who destroyed evidence, who did not cooperate initially with police, who did not call in to notify police immediately, concealed witnesses, and this is what we're left with, people who had time to concoct stories.
At the conclusion of the prosecutor's summation, defense counsel objected, claiming that on "a number of occasions [the prosecutor] accused [defendant] and others of concealing witnesses." Counsel sought an instruction from the court that there was no evidence of anyone concealing witnesses. The prosecutor explained that his remarks addressed the failure of Calderon to tell the police about the presence of Christine DeJoie and Nicole Estrada in the apartment. The court instructed the jury that
whatever references counsel made, either counsel made, with regard to the facts in the case, if they conflict with your recollection, you're the ones who govern the -- what was presented to the jury. You are the ultimate finder of facts, and what they say is not the evidence, so you should remember that.There was no objection to this instruction by either party.
III.
Prosecutors are "expected to make vigorous and forceful closing arguments" in summation and the courts "afford prosecutors considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999). "[T]he test for determining whether prosecutorial misconduct constitutes reversible error is whether the misconduct was so egregious that it deprived defendant of a fair trial." State v. DiFrisco, 137 N.J. 434, 474 (1994) (internal quotations marks omitted).
The evidence showed that defendant drove both Calderon and Boyd from the crime scene to Trenton, during which the gun was thrown in the river. Defendant also picked up DeJoie and Estrada after the shooting and drove them home. The two women, who claimed that the body lying at the bottom of the steps was not the bandanna gunman, were not identified as witnesses or contacted by law enforcement until 2011 and 2012. It is undisputed that none of the people who were in the apartment at the time of the shooting called 911 or otherwise attempted to notify the police.
We are satisfied that the prosecutor's comments were based on reasonable inferences that can be drawn from defendant's conduct after the shooting, including transporting witnesses from the crime scene, disposing of the gun by throwing it in the river, and failing to report the shooting to the police.
Defendant claims for the first time on appeal that the prosecutor's summation constituted a comment on his right to remain silent. When no objection is made at trial, the remarks will usually not be deemed prejudicial. State v. Ramseur, 106 N.J. 123, 323 (1987). As we have found that the remarks were within acceptable boundaries, we discern no error, let alone the plain error required. R. 2:10-2.
Defendant next claims that that the jury's verdict was "inconsistent, illogical and the result of [a] compromise." In support of this claim, he notes that the jury found him not guilty on count five, which charged him with second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b), but guilty of count three, which charged him with hindering his own apprehension. N.J.S.A. 2C:29-3(b)(1).
In his brief, defendant mistakenly refers to this count as "Count IV."
Defendant argues that the not guilty verdict on the unlawful possession of a weapon charge "necessarily determined the defendant never possessed the weapon alleged by the State to have been thrown into the river . . . ." We disagree.
In pertinent part, N.J.S.A. 2C:29-3(b) provides:
A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense . . . he:
(1) Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him[.]
The State established, through the testimony of DeJoie, that defendant possessed a silver handgun in the apartment after the shooting. The State also proved that while defendant was driving to Trenton, he stopped the car so that Boyd could dispose of the gun by throwing it into the Delaware River. This evidence is sufficient to support the jury's guilty verdict.
There can be any number of reasons why the jury acquitted defendant on the weapon possession charge. We are not to speculate why a jury acquits. State v. Grey, 14 7 N.J. 4, 11 (1996) ("[W]e should not speculate as to whether the verdicts resulted from jury lenity, compromise, or mistake not adversely affecting the defendant."). "[A] jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). We are satisfied that the record contains ample evidence to support the jury's guilty verdict on the hindering charge.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION