Opinion
DOCKET NO. A-2396-09T3
11-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARIEN WESTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Haas, and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-01-0209. Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
On June 25, 2015, the Supreme Court reversed our decision vacating defendant Darien Weston's convictions. Therefore, the matter was remanded for our consideration of the other issues defendant raised in his appeal which we had not previously addressed. State v. Weston, 222 N.J. 277, 279-80 (2015). We had earlier reversed defendant's conviction based on the jury's unrestricted access during deliberations to videotaped witness statements and, as a result, we did not reach defendant's additional points. Id. at 279. Now, having considered all the remaining arguments as set forth in defendant's counseled brief and pro se submission, we affirm, except that we remand for reconsideration of sentence.
In 2008, a jury found defendant guilty of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-4(a) (count three); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) or (2) (count five); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count seven); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count eight); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(3)(1) (count nine). Id. at 285. The jury was unable to reach a unanimous verdict on the remaining counts, which were retried in 2009. Ibid.
In the second trial, the jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree carjacking, N.J.S.A. 2C:15-2(a) (count four); and first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count six). Id. at 287. The jury acquitted defendant of fourth-degree aggravated assault (pointing a firearm), N.J.S.A. 2C:12-1(b)(4) (count ten). Ibid.
Designated as count eleven before a second count of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(3) (count ten) was dismissed on State's motion.
On December 4, 2009, defendant was sentenced to thirty years' imprisonment for kidnapping and five years for terroristic threats, totaling thirty-five years to be served consecutive to a life term for murder. The sentences consecutive to the life term were subject to the eighty-five percent parole ineligibility found in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed sentences, all concurrent to the life term, for the offenses that were not merged as follows: thirty years for the carjacking and five years for each of the possession of a weapon without a permit, witness tampering, and hindering apprehension.
I
A complete discussion of defendant's killing of Paul Phillips, and the two trials which followed, may be found elsewhere. See Weston, supra, 222 N.J. at 280-88. Suffice it to say that defendant forced Phillips out of the back of his own car into a dumpster, and shot him twice while Phillips held his head in his hands and wept. Id. at 281. Defendant drove off in the victim's vehicle, which was recovered three days later, five miles away from the scene. Id. at 280. The gun was also located nearby days later. Id. at 299.
The incident occurred on a summer evening in Newark, and was witnessed by several bystanders, including children. Id. at 280-83. Ultimately, only three people came forward, two of whom were minors. Ibid. One of those children, then twelve years old, had been ordered by defendant to "stash" a black gun for him, and told that if he did not hide the gun, defendant would murder the witness's mother. Id. at 282.
All three of the eyewitnesses were acquainted with defendant before the shooting. Id. at 280-81. He was eventually identified to the police by one of the children and his mother, who provided investigators with a picture of defendant found in a high school yearbook. Id. at 281. Defendant, who was then seventeen, was waived to adult court for trial, N.J.S.A. 2A:4A-26. Id. at 282.
Dr. Alex Zhang, of the Medical Examiner's Office (ME), performed the autopsy. Because he was not employed at that office during the trials, Dr. Leila Perez, also of the ME's office, testified as to Zhang's findings that death had been caused by two gunshot wounds to the head. Perez also testified regarding the removal of the bullets from the victim's ear and chin. Photographs taken during the autopsy, including of the victim's hands, were admitted through Perez's testimony.
Detective Peter Chirico of the Newark Police Department was present during the autopsy and witnessed the removal of the projectiles from the body. No objection was made to his testimony.
During her closing, the prosecutor commented that "fear paralyzed the neighborhood" and that this fear explained the reluctance on the part of eyewitnesses to speak to police. She reminded jurors that when the murder occurred, many in the community were outside their homes or at nearby basketball courts. Yet only three eyewitnesses came forward, at least one of whom made delayed disclosures. One child's mother actually testified that she did not initially contact the authorities because she did not want her family involved.
One of the child eyewitnesses, Q.M., with the assistance of police, relocated to another state. At the first trial, he recanted the statement he had given the authorities. Id. at 283-84. The adult eyewitness, although he spoke to police, was so hesitant about being involved that when he identified defendant's photo as that of the perpetrator, he signed the back with the pseudonym "John Doe." After he testified at the first trial, he was threatened and assaulted.
The judge, in his closing charge at the first trial, included, without objection or comment from counsel, Model Jury Charge (Criminal), "Terroristic Threats" (2004). When discussing the elements of the offense, however, the judge said that the State had to prove beyond a reasonable doubt that "the defendant threatened to commit the violent crime of threatening to kill the mother of [Q.M.]." We provide more detail regarding the instructions pertinent to our discussion in the relevant section of this opinion. Additionally, we later discuss the prosecutor's summation and the information the judge relied upon in sentencing defendant and do not detail it here.
Defendant's remaining points on appeal in his counseled brief are as follows:
POINT II
THE INSTRUCTION ON TERRORISTIC THREAT (COUNT 7) FAILED TO CLEARLY STATE THE CRIME OF VIOLENCE THREATENED. (Not Raised Below)
POINT III
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL, IN BOTH THE FIRST AND SECOND TRIAL, FAILED TO FILE A MOTION FOR A WADE HEARING WHERE JUVENILE EYEWITNESSES IDENTIFIED THE DEFENDANT FROM A SINGLE PHOTOGRAPH. (Not Raised Below)
POINT IV
THE COURT ERRED IN IMPOSING AN AGGREGATE SENTENCE OF LIFE WITH A 35-YEAR CONSECUTIVE SENTENCE AS IT WAS IN PART ILLEGAL, IMPROPERY MADE CONSECUTIVE, AND MANIFESTLY EXCESSIVE. (Not Raised Below)
In his pro se brief, defendant alleges the following errors warrant reversal:A. The Sentence on Count 8 Is Illegal Because It Exceeds The Sentence Range For Fourth-Degree Crimes.
B. The Consecutive Sentence On Kidnapping (Count 5) Must Be Vacated.
C. The Quantum Of Sentence Is Manifestly Excessive.
POINT I
PROSECUTION'S SUMMATION EXCEEDED BOUNDS OF PROPRIETY BY INFLAMING THE JURY WITH TALES OF A "COMMUNITY PARALYZED BY FEAR" NOT IN EVIDENCE. THUS VIOLATING DEFENDANT'S RIGHT TO AN IMPARTIAL JURY AND FAIR TRIAL; CONSEQUENTLY HIS 6TH AND 14TH AMENDMENTS.
POINT II
DEFENDANT'S 6TH AMENDMENT CONFRONTATION CLAUSE WAS VIOLATED IN HIS FIRST AND SECOND TRIAL WHEN MEDICAL EXAMINER DR. PEREZ ADOPTED AND RECOUNTED (TESTIFIED TO) THE FINDINGS OF DR. ALEX ZHANG, WHO CONDUCTED THE AUTOPSY, JUST BY READING HIS REPORTS.
POINT III
DEFENDANT'S CONFRONTATION CLAUSE WAS VIOLATED WHEN DETECTIVE PETER CHIRICO WITH HEARSAY TESTIFIED ABOUT INFORMATION CONTAINED IN THE MEDICAL EXAMINER REPORT THAT TWO PROJECTILES WERE RECOVERED FROM THE BODY OF THE VICTIM AND AUTHENTICATED THE EVIDENCE IN THE COURT VIOLATING DEFENDANT'S 6TH AMENDMENT RIGHT TO CONFRON[T] AND HIS
14TH AMENDMENT RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT IV
THE TRIAL COURT ABUSED [ITS] DISCRETION BY ADMITTING HIGHLY PREJUDICIAL AUTOPSY PHOTOS OF THE VICTIM'S BLOODY HANDS BECAUSE THE AUTHENTICITY OF THE PHOTOS WAS NEVER ESTABLISHED EXCEPT THROUGH THE USE OF INADMISSIBLE HEARSAY AND STATE NEVER ESTABLISHED THEIR RELEVANCE AND THE PREJUDICE WAS OUTWEIGHED BY NON[-]ESTABLISHED PROBATIVE VALUE[] VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER STATE AND FEDERAL LAW AND DUE PROCESS RIGHTS.
II
Because defendant did not object to the terroristic threat instruction at trial, we review it for plain error. R. 2:10-2; see also State v. Singleton, 211 N.J. 157, 182 (2012). To warrant reversal, the error must be "clearly capable of producing an unjust result." R. 2:10-2. In the context of jury instructions, this means the alleged error must so substantially affect the rights of the defendant as to "convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (quoting State v. Adams, 194 N.J. 186, 207 (2008)).
In assessing the impact of an allegedly erroneous instruction, we consider the charge as a whole. State v. Jordan, 147 N.J. 409, 422 (1997) (citing State v. Wilbely, 63 N.J. 420, 422 (1973)). Here, the State responds that the judge's misstatement of the law was harmless because the balance of the instruction was correct.
A defendant is guilty of terroristic threats under N.J.S.A. 2C:12-3(a) "if he threatens to commit any crime of violence with the purpose to terrorize another . . . ." Q.M. testified that defendant threatened to kill Q.M.'s mother if he did not dispose of the gun for him.
Before and after the misstatement that the violent crime defendant threatened to commit was "threatening to kill Q.M.'s mother," however, the judge explained that the State had to prove defendant threatened to commit a crime of violence, and that the State had to prove the threat was made with the purpose of terrorizing Q.M. The judge's misstatement when defining the violent crime was superfluous and therefore harmless. Assuming the transcription is accurate and that the judge in fact described the violent crime as the threat to kill Q.M.'s mother, the statement would not have confused the jury. They could not have mistaken the overall import of the charge, that the violent crime being threatened was the murder of Q.M.'s mother.
III
Defendant also contends that counsel was ineffective because of his failure to file a motion for a Wade hearing. We note that defendant's identification as the shooter was not the result of a routine police photo array, but rather, the result of the eyewitnesses' prior acquaintance with him. Indeed, it was an eyewitness who provided defendant's photograph to police in the first instance.
U.S. v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). --------
In any event, alleged ineffective assistance of counsel is generally deferred to petitions for post-conviction relief (PCR), rather than being addressed on direct appeal, because considering the claim often requires evidence outside the trial record. State ex rel. K.O., 424 N.J. Super. 555, 559 (App. Div. 2012), rev'd on other grounds, 217 N.J. 83 (2014). Accordingly, we defer the issue.
IV
In his pro se brief, defendant asserts that the prosecutor in the second trial made improper comments in summation which prejudiced the jury against him, and that therefore, the convictions must be reversed. This includes the prosecutor's statement that "fear paralyzed the neighborhood[.]"
In her closing, the prosecutor elaborated on the fact that this crime occurred, in public view, "under street lights on a summer night with people on the basketball courts, with kids around." She referred to testimony to the effect that the police learned of one eyewitness only because his mother knew an investigating officer, as otherwise she would not have brought in her child to meet with the authorities. The prosecutor also reiterated testimony that even though that child eyewitness was very troubled by seeing a man murdered, the child's mother was more concerned about what might happen to her son if he was seen cooperating with police than she was about reporting the crime.
The prosecutor's statement that "fear paralyzed the neighborhood" was made in conjunction with her discussion of the information the jury heard. Hence the comment was fully grounded in the evidence. See State v. Jackson, 211 N.J. 394, 408 (2012).
Prosecutors are given "considerable leeway" in summarizing their case to the jury. State v. Smith, 167 N.J. 158, 177 (2001). They are expected to make vigorous and forceful arguments so long as they fulfill their "primary duty . . . to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). They are obliged to confine their comments to the evidence presented during the trial. Smith, supra, 167 N.J. at 178. We are satisfied that in this case the prosecutor's comment was not improper. She was addressing the paucity of witnesses, a potential weakness in the State's case, despite the time and place of the shooting.
V
In his pro se brief, defendant also contends that his Sixth Amendment right to confront witnesses was violated when Perez testified, without objection, to Zhang's autopsy findings, establishing a foundation for the admission of photographs that she did not take, and for the admission of the bullets that Zhang removed from Phillips's body.
Defendant also contends it was plain error to permit Chirico to testify that Zhang removed the projectiles from Phillips's ear and chin. He claims the evidence was prejudicial because it established the cause of death, portrayed graphic images of Phillips's body, linked the bullets to the weapon later seized near the location of the murder, and caused the jury to empathize with Phillips.
At the second trial, counsel objected to the photograph of the victim's bloody hands. Otherwise no objection was made to any of the autopsy testimony or evidence at either trial.
Since the trials on this indictment, the Supreme Court has clarified that a Confrontation Clause challenge not advanced at trial may be deemed waived on appeal. State v. Williams, 219 N.J. 89, 93 (2014), cert. denied, Williams v. N.J., ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015).
In Williams, defendant claimed his right to confront witnesses was violated under circumstances which mirror these. Essentially, a medical examiner testified about the cause of death even though he did not witness or personally conduct the victim's autopsy. Id. at 93. The Court concluded that the defendant's failure to object on confrontation grounds, and his decision to cross-examine the medical examiner, effectively waived any objection on that basis. Ibid. As the Court said, "[t]he right of confrontation, like other constitutional rights, may be waived by the accused. The Constitution does not compel a criminal defendant to insist that the State call a live witness who might do damage to his case." Id. at 98.
In this case, defendant did not object and cross-examined Perez. He may have, as a matter of strategy, seen a benefit from Perez testifying from a written report. This was, no doubt, less graphic and vivid a portrayal of the process than it would have been had Zhang described the autopsy step-by-step. And it cannot be disputed that the victim died from gunshot wounds to the head, as witnessed during the commission of the crime. Furthermore, Chirico was present during the entire autopsy and actually saw Zhang remove the projectiles about which he testified. In sum, we conclude that any objection to the admission of Perez's testimony should be deemed waived.
The admission of the photographs through Perez's testimony does not implicate the Confrontation Clause either. Chirico was present when they were taken and he also discussed the pictures. Photographs need not be admitted solely through the testimony of the photographer; they can be admitted through the testimony of another so long as a proper foundation is laid. State v. Wilson, 135 N.J. 4, 14 (1994) ("The person testifying need not be the photographer, because the ultimate object of an authentication is to establish its accuracy or correctness. To that end, any person with the requisite knowledge of the facts represented in the photograph or videotape may authenticate it."); see also State v. Joseph, 426 N.J. Super. 204, 220-221 (App. Div.), certif. denied, 212 N.J. 462 (2012) (finding that photographs of the perpetrator were properly authenticated and admitted through testimony of detectives). Thus, defendant's arguments that the admission of the autopsy report and the testimony regarding the bullets violated his rights lack merit.
We consider defendant's contention that the photograph of the victim's hands should not have been admitted to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The photographs only depicted blood on the hands, not hands in a position of prayer.
VI
At the time of the commission of this offense, defendant was on juvenile probation and house arrest. During the sentencing hearing, the prosecutor said that when police went to defendant's home to question him, his electronic monitoring device was there but he was not. This circumstance was not disputed by defendant. Since age fifteen, he had been placed on probation twice.
Defendant was nineteen when sentenced and denied having substance abuse issues to the probation officer who authored his presentence report. He had been adjudicated delinquent for attempted burglary, criminal mischief, receiving stolen property, and simple assault. Defendant had previously violated probation and been committed to a juvenile correctional facility. Accordingly, the judge found aggravating factor three, the risk he would reoffend, N.J.S.A. 2C:44-1(a)(3); and nine, the need to deter, N.J.S.A. 2C:44-1(a)(9). These conclusions, obviously, were supported by the record.
Because of the brutal nature of the murder, in which the judge found defendant's purpose "was to execute a person in the most humiliating and demeaning manner," and the nature of the terroristic threats, the court found aggravating factor one, that the crime was committed in a particularly heinous fashion, N.J.S.A. 2C:44-1(a)(1). The victim was pulled out of his own car and forced to climb into a container filled with trash in the moments immediately before his own death, knowing he was about to die. Additionally, defendant "attempted to silence" one of the eyewitnesses, a child, by threatening to kill the child's mother. Thus the evidence in the record supported that factor as well.
Defendant contends that the court's sentence was erroneous because the judge: misinterpreted the mandatory consecutive term provision in the kidnapping statute, N.J.S.A. 2C:13-1(c)(2); had no independent basis in the record for imposing the kidnapping sentence consecutive to the murder term of life; had no basis in the record for the imposition of the maximum sentence of life imprisonment for the murder; and erred by imposing a sentence on the tampering conviction which exceeded the statutory maximum.
The State concedes that the kidnapping statute did not require a consecutive term for this defendant. N.J.S.A. 2C:13-1(c)(2) provides that if the victim of a kidnapping is sixteen years of age or younger, and certain enumerated factors are present, the term of imprisonment shall be twenty-five years to life, of which twenty-five years must be served without parole. Additionally, the statute says "[i]f the actor is convicted of the criminal homicide of a victim of a kidnapping under the provisions of chapter 11, any sentence imposed under provisions of this paragraph shall be served consecutively to any sentence imposed pursuant to the provisions of chapter 11 [on homicides]." Section (c)(2) clearly applies only when the victim is sixteen years of age or younger. Thus the sentence for the kidnapping offense must be reconsidered.
The judge's mistaken reading of the kidnapping statute may well have colored his reasoning as to whether the sentences should, on a separate basis, be served concurrently or consecutively. See State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded in part by statute, N.J.S.A. 2C:44-5. In his Yarbough discussion, the judge found that defendant's objectives in kidnapping the victim and murdering him were different, that defendant kidnapped Phillips to eliminate the possibility of his escape after witnessing the carjacking, and that the objective of the murder was to execute.
We do not agree as a general proposition, however, that when a victim of a crime is kidnapped solely to eliminate the possibility that he can identify the perpetrator of another crime against him, that the objective of the conduct is so different from the objective of the killing, which serves the same purpose, as to warrant consecutive sentences. In this case, the objective of the crimes were clearly intertwined. The incident began and ended in approximately ten to fifteen minutes. Therefore the issue of whether concurrent or consecutive sentences under Yarbough are appropriate must also be revisited.
The court imposed a five-year prison term on a fourth-degree crime, tampering with physical evidence. As the Supreme Court has recently had occasion to reiterate, "the code has established a framework of structured discretion within which judges exercise their sentencing authority. . . . Crimes are classified as first, second, third, or fourth[-]degree crime in descending order of seriousness, and each degree contains a range within which a defendant may be sentenced." State v. Case, 220 N.J. 49, 63 (2014) (citing State v. Natale, 184 N.J. 458, 485 (2005) and N.J.S.A. 2C:43-6(a)). A fourth-degree crime is punishable by a maximum of eighteen months in State prison. N.J.S.A. 2C:43-6(a)(4). Hence, as the State concedes, the sentence was imposed in error, and defendant is entitled to be resentenced for that offense as well.
No evidence of mitigating factors was presented. See State v. Dalziel, 182 N.J. 494, 504 (2005). When defendant was sentenced to a life term, certainly at the highest end of the sentencing range, the judge properly balanced the relevant factors and made a qualitative assessment of defendant's conduct. See State v. Fuentes, 217 N.J. 57, 72 (2014). The sentence was supported by credible evidence in the record, did not appear to be excessive, and did not shock our conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).
Affirmed, except that the sentence on the tampering conviction is vacated, and a sentence within the statutory range shall be imposed on remand. The judge must also reconsider the kidnapping and terroristic threats sentences and whether they should be served on a consecutive or concurrent basis in accordance with this decision. On these three offenses, the court must afford defendant a new sentencing hearing. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION