Opinion
DOCKET NO. A-4057-12T1
03-25-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAMIR R. YOUNG, a/k/a DAMIR YOUNG, DAMIRE YOUNG, TAURON D. YOUNG, TARON D. YOUNG, SMOKE YOUNG and JAHLIL ALWAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-08-2387. Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Damir R. Young was indicted with a co-defendant, a man named Warrington, on charges of robbery, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:2C:5-2 and 2C:15-1; attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a; aggravated assault, N.J.S.A. 2C:12-1b(1); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a firearm, N.J.S.A. 2C:39-5c(1). Warrington was acquitted by the jury of all charges, and defendant was convicted only of conspiracy to commit robbery. The judge sentenced defendant to an eight-year prison term with the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence, raising two issues:
I. IT WAS ERROR TO ADMIT [Mr.] MEANS' STATEMENT TO THE POLICE SUBSTANTIVELY UNDER THE HOLDING OF STATE V. GROSS, 121 N.J. 1 (1990).Because our review of the record convinces us that neither argument has merit, we affirm.
II. THE EIGHT-YEAR NERA SENTENCE IMPOSED IN THIS CASE IS MANIFESTLY EXCESSIVE.
Two days before Christmas in 2008, Lindenwold police responded to a call about a cab driver who crashed his cab into two cars and then broke the glass of a door of a nearby apartment banging to get in. When the police arrived, they found the driver incomprehensible and bleeding from severe injuries to the left side of his face and head. Concluding he was a drunk driver, the police arrested him and transported him to the hospital. Doctors there advised that the driver's injuries were caused by a shotgun blast and not a car accident. Realizing the cabbie was a crime victim and not a drunk driver, police returned to the scene to find his cab had been looted. Although they were able to recover buckshot and shell wadding from the cab, they later lost that evidence and could not present it at trial.
The cab driver recovered and testified to what happened. He claimed he was dispatched to the Arborwood Condominiums in Lindenwold to pick up a fare. When he got there, he drove up to a small group of people, and two men got in. When the men could not say where they wanted to go, the driver stopped the cab and insisted he would not drive on until they had a firm destination. The man sitting behind him responded by pointing a gun at his head, saying "you know what it is." Immediately apprehending he was being robbed, the driver threw the cab into reverse, rammed the car behind him, then put the cab in gear and crashed into another car. Dazed and disoriented from the shotgun blast, he stumbled from the cab and fled to the nearest apartment. He could not identify either one of his assailants.
The key witness at trial was defendant's cousin. She testified that she was walking from her aunt's house to meet up with a friend for a slumber party on the night of the robbery. She claimed she was walking with defendant near the Arborwood Condominiums when defendant asked her to call a cab. She called the Bey Royal cab company using the number stored on her phone. She then met up with her friend and defendant walked away toward two men she knew as "Seat" and "Santana." When the cab pulled up, she told the driver that the cab was for defendant, pointing him out, and she and her friend walked away. Five minutes later, the two heard a gunshot and a skidding car and ran.
The friend testified that she was going to a slumber party with defendant's cousin. She claimed that when the two met up near the condominium complex, defendant's cousin was walking with a different boy, but that defendant was standing nearby with Santana and a third man. Shortly thereafter, a Bey Royal cab rolled up, and the driver asked who called for a cab. Defendant's cousin pointed to the three men, and the two girls continued walking. A few minutes later, the girls heard gunshots and ran away.
Defendant's cousin testified she spoke to defendant on the phone about an hour after the shooting. Defendant told her that he was okay but admitted he was involved in the robbery. Two days later, on Christmas Day, she again saw defendant with Seat, Santana and "other boys." She testified she overheard defendant ask Seat where the gun was and that he wanted to go find it. Hearing that, she claimed she asked defendant what would have happened had she gotten into the cab. She testified that defendant told her he would not have let her do so.
In addition to those witnesses and the investigating officers, the State also called a man named Means. Means had given the police a statement about a month after the robbery implicating both defendant and the co-defendant, Warrington. Means did not claim to have witnessed the crime, and he was the only person to implicate Warrington. No other witness testified to seeing Warrington at all that evening. The police arrested Means during an appearance at drug court. They told him, however, they were not interested in talking with him about the charges on which he had been arrested but instead wanted to know what he knew about this incident.
Means told the police in a taped statement that he had walked through the Arborwood complex about a half hour before the shooting. He claimed to have seen a group of five people "hanging out" and smoking marijuana, including Warrington and defendant's cousin. He never claimed he saw defendant. Means was inside his brother's apartment by the time he heard shots fired. He told police he went out onto the balcony to see if he could see what was going on. When he could not, he drove his car over but could not get close as the police had already cordoned off the area. Back in the apartment, Means called an old girlfriend who lived in the cordoned-off area. She told him a cab driver had been shot in a robbery, and the cabbie had crashed into her car.
Means claimed to have run into defendant on Christmas night, and that defendant told him he had committed the robbery. A short while later, Means claimed to have spoken to both Warrington and defendant together. Although admitting he and Warrington had a "little beef" between them, Means claimed Warrington said that was "water under the bridge" and he was "trying to stay low" because of the robbery. Means claimed Warrington told him "he went to go rob the dude" when the cabbie "tried to pull off on him, so he said he went for his biscuit." When the officer taking the statement asked what he meant by that, Means explained, "like when he shot, he went for his head, like that's [what] he wanted, he wanted his head." Means claimed he told defendant and Warrington that what they had done was stupid but did not pursue the matter further.
On the witness stand, Means disavowed any recollection of having given that statement to the police. Further, his recollection was not refreshed by seeing the transcript of the statement or hearing the audiotape. He did, however, assert that his claim in the statement of having attended college at Columbia University was true. Finding Means had feigned his lack of recollection, the judge deemed it an effective denial of his earlier statements under State v. Brown, 138 N.J. 481, 542 (1994), and held a Gross hearing outside the presence of the jury. At the conclusion of the hearing, the judge made comprehensive findings detailing her observations of Means at trial, as well as her impressions of his audiotaped statement. After addressing each of the fifteen Gross factors, the judge determined that all weighed in favor of the admissibility of the statement. She accordingly admitted a redacted version of Means' statement for the jury's consideration as substantive evidence.
In his statement, Means said he "completed high school [,] completed vocational training and [his] carpentry certification and . . . did a couple of semesters at Columbia University in Manhattan." At trial, Means claimed to have received his Associates degree in psychology from Columbia after "two or three" semesters.
The defense presented no witnesses but instead focused on the inconsistencies and improbabilities of the State's case and the alleged shoddy police work. Both defendants claimed the State had fallen short of its obligation to prove guilt beyond a reasonable doubt.
After several hours of deliberations, the jurors sent the judge a note that they were "hung on the conspiracy charge" against defendant but had reached a verdict on all other counts. The judge instructed them to continue their deliberations. The jury thereafter returned a verdict finding defendant guilty of conspiracy to commit robbery but acquitting him of all other charges.
Defendant moved for judgment of acquittal notwithstanding the verdict, contending the court had erred in admitting Means' statement. After reviewing the submissions of counsel and hearing argument, the judge denied the motion. Reasoning that defendant's cousin and her friend put defendant at the scene and that defendant's cousin testified she called the cab at defendant's behest, the court concluded the jury could properly find defendant guilty of conspiracy to commit robbery without regard to Means' statement further implicating defendant in the crime. This appeal followed.
We review a trial court's evidentiary rulings only for abuse of discretion, meaning that we do not set such rulings aside unless it appears that "there has been a clear error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Braun, 170 N.J. 138, 147 (2001)). We must be convinced that "the trial court's ruling is so wide of the mark that a manifest denial of justice resulted." Ibid. (quoting Braun, supra, 170 N.J. at 147).
The admission of a prior inconsistent statement of a witness at trial is governed by N.J.R.E. 803(a)(1). State v. Johnson, 421 N.J. Super. 511, 516 (App. Div. 2011). A prior inconsistent statement is admissible as substantive evidence when offered by the party who called the witness if it is "contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability." Ibid. In making that determination, the trial court must consider a number of factors:
(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate
himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence.Having reviewed the trial record and Means' recorded statement, we find no error of judgment here. The judge examined the fifteen Gross factors in considerable detail and found that all supported the reliability and credibility of the prior statement.
[Gross, supra, 121 N.J. at 10.]
Defendant contends that four of those factors, factors one, the declarant's connection to and interest in the matter reported in the out-of-court statement; seven, whether the declarant incriminated himself or sought to exculpate himself by his statement; thirteen, whether the anticipated use of the statement was apparent or made known to the declarant; and fourteen, the inherent believability or lack of believability of the statement, severely cut against the statement's reliability. We disagree.
Defendant posits that Means was, at best, an officious intermeddler and, at worst, "a participant in the robbery, trying to frame someone else for his crime." Relying on the latter theory, he contends the statement should have been excluded because Means had an interest in directing suspicion toward someone else, his identification of defendant and Warrington as the self-confessed robbers served his interest in fully exculpating himself, he designed the statement knowing the police would use it to prosecute defendant and Warrington and thus "its inherent believability . . . was virtually nil." There is, however, not a scintilla of evidence on this record that Means was ever a suspect in the robbery. No witness put him at the scene and no evidence of any sort linked him to the crime. The officer who took Means' statement, who the court found credible, did not testify Means was ever a target of the investigation. Accordingly, we reject the argument that the court abused her discretion in admitting Means' statement.
Defendant is particularly critical of the court's refusal to consider Means' account of his degree from Columbia as sufficient to exclude his statement. Even were we to agree with defendant that Means' account of his education was not particularly credible, it would not cause us to reject the judge's finding that this peripheral issue was not "very significant."
We further note our agreement with the trial court's observation in ruling on defendant's post-trial motion regarding the effect of this testimony. Leaving aside Means' statement, the testimony of defendant's cousin, and specifically that she called the cab at defendant's behest, was sufficient to convict defendant of the conspiracy charge beyond a reasonable doubt. Accordingly, Means' statement, even if erroneously admitted, cannot be considered harmful. State v. Macon, 57 N.J. 325, 336 (1971).
--------
We have considered the arguments defendant has offered to establish his sentence is excessive and determined that they present no basis for reversal. The judge noted although only twenty-five, defendant had fourteen contacts with the criminal justice system, including five juvenile adjudications and a Superior Court conviction for possession of a controlled dangerous substance. The judge carefully explained her reasons for finding aggravating factors three, the risk defendant will commit another offense, six, the extent of the defendant's prior criminal record, and nine, the need to deter, N.J.S.A. 2C:44-1a (3), (6) and (9), as well as mitigating factor six, that defendant has compensated or will compensate the victim for the damage or injury sustained, or will participate in a program of community service, N.J.S.A. 2C:1b(6).
Defendant does not dispute the applicability of those aggravating factors, he complains only that the judge weighed them too heavily. The judge's careful findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence imposed is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION