STATE OF NEW JERSEY v. ALVIN McMICKEL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0134-03T40134-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALVIN McMICKEL,

Defendant-Appellant.

_________________________________________________

 

Submitted September 20, 2005 - Decided:

Before Judges Axelrad and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Essex County, Indictment no. 97-10-4249.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alison Perrone

on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Debra G. Simms,

Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

Defendant Alvin McMickel, charged with first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 5-1 (count one), second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c (count three), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four) was convicted by a jury of all charges except first-degree attempted murder. He was sentenced to ten years in prison with a five-year parole disqualifier, upon findings of aggravating factors one (the nature and circumstances of the offense), two (the gravity and seriousness of the harm inflicted on the victim), three (the risk of re-offense), and six (the extent of defendant's prior criminal record). N.J.S.A. 2C:44-1a(1), (2), (3), and (6). No mitigating factors were found.

Defendant appeals from both the conviction and the sentence. We affirm the conviction, and we reverse the sentence, remanding it for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005) (Natale II).

Defendant's conviction arises out of the shooting of Jessie Howard in the groin with a sawed-off shotgun on January 23, 1996. The assault took place as revenge for a fight that had previously occurred between Howard and defendant's brother, Altariq McMickel, after Altariq had sold Howard a stolen car, leading to Howard's arrest and eventual conviction for receipt of stolen property. Following the shooting and while in the ambulance, Howard exhibited no vital signs, but was revived at the hospital. He was hospitalized for six or seven months, spent several weeks in a medically-induced coma, and underwent multiple surgeries including amputation of his leg at the hip.

On appeal, defendant raises the following issues, none of which was raised at trial:

POINT ONE

THE ADMISSION OF HEARSAY EVIDENCE IMPLICATING DEFENDANT IN CRIMINAL ACTIVITY VIOLATED DEFENDANT'S RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.

POINT TWO

THE TRIAL JUDGE'S FAILURE TO TAKE ANY CORRECTIVE MEASURES AFTER IT WAS REVEALED THAT A JUROR HAD SLEPT THROUGH A SIGNIFICANT PORTION OF THE TRIAL DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT THREE

THE TRIAL COURT'S ONE-SIDED IDENTIFICATION INSTRUCTION WHICH ONLY MENTIONED TESTIMONY FAVORABLE TO THE STATE WITHOUT ANY MENTION OF FAVORABLE DEFENSE EVIDENCE REGARDING MISIDENTIFICATION, REQUIRES THE REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT FOUR

IMPOSITION OF A PRISON TERM ABOVE THE PRESUMPTIVE VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW.

POINT FIVE

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A TEN-YEAR TERM WITH FIVE YEARS OF PAROLE INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We note at the outset the language of R. 2:10-2, which provides that any error shall be disregarded by the appellate court "unless it is of such a nature as to have been clearly capable of producing an unjust result." Under this standard, "not 'any' possibility can be enough for a rerun of the trial. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In light of the strong evidence of defendant's guilt presented to the jury, we find none of the trial errors of which defendant complains sufficient to meet this standard.

At trial, testimony was provided by police officers Dawn Koontz and Maurice Gattison that Howard had told each of them that he had been shot by "Altariq's brother." Additionally, a neighbor of both the Howard and the McMickel families, Lucien Jean-Baptiste, testified that he had witnessed part of the fight between Altariq and Howard, and he had heard Altariq's threat that one of his brothers would shoot Howard. There was no substantial suggestion at trial that the shooting had been accomplished by anyone other than "Altariq's brother." However, Altariq had two brothers, defendant and Javon.

Defendant sought to establish that it was his younger brother Javon, not defendant, who was the shooter. The evidence at trial provided minimal support for that position. All but one of the State's lay witnesses knew the McMickel family, who lived across the street from the Howards, although many did not know the names of the McMickel sons, or knew them only by street names. Howard himself identified defendant as the person who had shot him when shown a photo line-up in the hospital on February 28, 1996, and he rejected a photograph of Javon as depicting the shooter. Howard's friend Terrell Germany, who was walking with him at the time of the shooting, did not know the gunman. However, he testified that the person's identity was clearly known to Howard. Edna Howard, the victim's sister, witnessed the shooting and provided an in-court identification. Her husband, Jeffrey Reid, who had encountered a masked person carrying a gun partially hidden in a box when he came to the door on a prior occasion shortly before the shooting, identified defendant's picture in a photo array as the gun-carrying visitor. Additionally, Reid testified that a few days before the shooting, he had heard defendant, whom he recognized as a neighbor, threaten to kill Howard. Finally, Lucien Jean-Baptiste, who knew defendant because he regularly visited Jean-Baptiste's step-son, testified that he had seen defendant both before and immediately after the shooting. The only photo identification of Javon was provided by Edna Howard, who had identified him before trial in a photo array, but identified defendant at trial.

I.

On appeal, defendant first challenges as hearsay a statement by investigating detective Velez, when asked by the prosecutor what led him to focus his investigation on the two younger McMickel brothers, that:

It was relayed that Mr. McMickel, Altariq, had had a confrontation with the victim at some point over a vehicle. Then it was relayed that one of the brothers had made retribution for that altercation.

We agree with defendant that the statement by Velez violated the proscriptions of State v. Bankston, 63 N.J. 263, 268-69 (1973), since it conveyed the substance of information received from an unnamed informant, possibly Altariq himself, who did not testify at trial and thus was not subject to cross-examination, in violation of the hearsay rule and defendant's Sixth Amendment right to confrontation. We do not, however, find the admission of the statement, to which no objection was made, to constitute reversible error in the context of this case, since it was essentially conceded that one of the McMickel brothers had fired the gun, and the only substantial question at trial was the identity of that brother - a matter that was not addressed by Velez in the statement to which objection is now raised.

Defendant next objects to the court's failure to take corrective measures when it was brought to its attention by the prosecutor that a juror, who later participated in the jury's deliberations, had been sleeping. The incident occurred on the third day of testimony, after the appearances as witnesses of police officer Koontz on October 4, 2000; the victim, his sister, his brother-in-law, and the emergency room physician on October 5, and Howard's brother-in-law and Terrell Germany on October 11. That a juror was sleeping was mentioned by the prosecutor on October 11 after a third witness, Lucien Jean-Baptiste, had completed his direct testimony for the State and as his cross-examination by the defense commenced with a recapitulation of prior testimony. At that time, the following colloquy occurred at side bar:

[PROSECUTOR]: We have a problem. We have a juror who has been sleeping a lot of this trial and he is sleeping now. I think it is number 14. I don't know exactly what to do about that. I don't know what to do, whether he should be the person that is going to be the alternate, I am not sure. But he is snoring.

THE COURT: Well, he woke up now.

[PROSECUTOR]: He woke up now when we came over.

[DEFENSE COUNSEL]: I haven't taken any notice of that.

[PROSECUTOR]: I am just -

THE COURT: I didn't notice it either.

[DEFENSE COUNSEL]: But we can deal with it now that we are aware.

[PROSECUTOR]: Okay.

No further reference to any juror sleeping appears in the record, and no reference preceded the prosecutor's comment.

As defendant notes, we have previously held that the court should take corrective action when counsel brings to its attention the fact of a sleeping juror. State v. Burks, 208 N.J. Super. 595, 611-12 (App. Div. 1986); State v. Reevey, 159 N.J. Super. 130, 133 (App. Div.), certif. denied, 79 N.J. 471 (1978).

In this case, no such action was taken, but none was requested, and the attorneys appear to have concurred in the conclusion that now the problem was known, it could be dealt with if it again arose. We find counsel to have waived its right to further inquiry and corrective action in this circumstance. State v. Scherzer, 301 N.J. Super. 363, 491 (App. Div.), certif. denied, 151 N.J. 466 (1997). Moreover, we find no prejudice to defendant to have been demonstrated on the present record, since there is no evidence that the juror slumbered through testimony favorable to him. State v. Glover, 230 N.J. Super. 333, 343 (App. Div. 1988) (finding failure to take appropriate action with respect to sleeping juror to be harmless error when testimony being offered at the time was cumulative and not critical to defendant's defense), certif. denied, 121 N.J. 621 (1990).

Defendant also challenges the court's instruction to the jury on the issue of identification, claiming that it was factually inaccurate. Defendant argues additionally that the "one-sided reference to evidence favorable to the State regarding the identification of defendant as the person who committed the crime, without any reference to substantial defense evidence that defendant was misidentified as the perpetrator, denied defendant due process of law and a fair trial under both the United States and New Jersey Constitutions." We find no reversible error.

Our review of the court's instruction discloses that it tracked, virtually verbatim, the language contained in the model jury charge regarding in-court identification. The only reference that related to the facts of the matter was the following:

Now the State has presented the testimony of various witnesses, which you will recall, including Jessie Howard, Jeffrey Reid, Francois Louis Jean-Baptiste, Kathleen - I am sorry, Terrell Germany and Michelle Howard with regard to their observations at the scene at the time of this incident. And the following comments apply to the testimony of all those witnesses:

You will recall that those witnesses identified the defendant in court as the person who committed the offenses charged. According to those witnesses, their identification of defendant was based upon the observations and perceptions made at the scene - made of the perpetrator at the time the offense was being committed. It is your function to determine whether the witnesses' identification of the defendant is reliable and believable, or whether it is based on a mistake or for any reason it is not trustworthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offense charged.

The court then enumerated the factors that the jury should consider in determining reliability.

As defendant notes, certain factual errors in the charge existed, since only the victim, his sister Michelle, and Terrell Germany witnessed the actual shooting. The testimony of the remaining witnesses who were identified by the court concerned observations occurring before or after the actual assault. However, although we recognize that the court's charge was temporally incorrect, we do not regard the error as material because of the close proximity in time of the observations of all witnesses. Additionally, we note that Terrell Germany, who was not asked to do so, did not provide an in-court identification of defendant, as the language of the court's charge implies.

Nonetheless, we find that the charge as given adequately fulfilled the three purposes of an instruction on the issue of identification set forth in State v. Green, 86 N.J. 281, 293-94 (1981), because it highlighted the State's obligation to prove beyond a reasonable doubt that defendant had committed the crimes charged, it emphasized that defendant had no obligation to prove that he was elsewhere or to identify the true culprit, and it guided the jurors in their evaluation of eyewitness testimony. Moreover, we find that the court properly charged the jury that "regardless of what counsel may have said or I may have said in recalling evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts." Although factual errors in the charge existed, our review of the trial record satisfies us that they did not possess a clear capacity to bring about an unjust result. State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

We do not regard the fact that the judge identified the State's lay witnesses by name to have compelled him to reiterate the defense's arguments with respect to identification that had just been exhaustively presented to the jury by defense counsel in his closing argument. The defense presented no witnesses. Thus, the names offered to the jury by the court as witnesses to events surrounding the assault were complete. We find that they were supplied solely for the purpose of giving context to the court's subsequent instruction on the factors that the jury should consider in determining the reliability of the witnesses' identification testimony - a crucial element of the case. The judge did not in any significant way refer to the evidence provided by any of the named witnesses. In this circumstance, we find no abuse of discretion in the court's determination not to present defendant's contentions on the identification issue - a matter properly addressed by counsel in his closing argument. See State v. Walker, 322 N.J. Super. 535, 551 (App. Div.) (the responsibility to make the jury aware of any inconsistencies in the State's identification testimony generally lies with defense counsel, not the court), certif. denied, 162 N.J. 487 (1999). See also State v. Robinson, 165 N.J. 32, 45 (2000) (the obligation to present defendant's contrary contentions arises only when the court refers to the State's evidence on a particular issue in a significant way). Defendant's conviction is therefore affirmed.

II.

Defendant argues as well that his sentence should be vacated as the result of the court's consideration of aggravating factors (other than his criminal record) in imposing a sentence above the presumptive term that were not submitted to the jury for its consideration and proven beyond a reasonable doubt, in violation of his Sixth Amendment rights as set forth in Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 and Blakely, supra, 542 U.S. at ___, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412. We agree and remand for resentencing in light of those decisions, as well as the New Jersey Supreme Court's decision in Natale II, supra, 184 N.J. at 487, which abolished presumptive terms under New Jersey's sentencing scheme.

Contrary to defendant's arguments, we find no abuse of discretion in the court's determination not to consider mitigating factors three (provocation) and four (substantial grounds to excuse defendant's conduct), N.J.S.A. 2C:44-1b(3) and (4), finding no support for them in a case in which defendant exacted violent revenge for a mere perceived affront to his brother. We also find no abuse of discretion in the court's determination not to consider defendant's youth in imposing the sentence, given defendant's extensive prior record of commission of serious juvenile offenses. See State v. Sherman, 367 N.J. Super. 324, 360 (App. Div.), certif. denied, 180 N.J. 356 (2004) (recognizing the discretionary nature of the court's consideration of mitigating factors). Compare State v. Dalziel, 182 N.J. 494, 503-05 (2005) (holding that the court lacks the discretion to disregard mitigating factors that are fully supported by the evidence).

Defendant's conviction is affirmed; his sentence is reversed, and the matter is remanded for resentencing.

 

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A-0134-03T4

November 3, 2005