STATE OF NEW JERSEY v. MALIK YARRELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0691-03T40691-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALIK YARRELL,

Defendant-Appellant.

_______________________________________

 

Argued October 3, 2005 - Decided

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-08-2147, 00-08-2148 and 00-08-2149.

Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Blum, on the brief).

Daniel I. Bornstein, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General of New Jersey, attorney; Mr. Bornstein, on the brief).

PER CURIAM

Defendant Malik Yarrell appeals from judgments of conviction entered on January 17, 2003 which imposed sentences resulting from defendant's plea of guilty to all charges set forth in Essex County Indictments Nos. 00-08-2147, 00-08-2148 and 00-08-2149. Defendant also appeals a judgment of contempt of court entered on December 19, 2002. We affirm in part, reverse in part and remand for entry of a corrected judgments of conviction.

I.

Defendant, Norman James, Jovar B. Persha and Clifford McAdams were charged in Indictment No. 00-08-2147 with conspiracy to commit murder, second degree, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); the purposeful or knowing murder of Clarence Clark, first degree, contrary to N.J.S.A. 2C:11-3a (count two); possession of a firearm (a .45 caliber handgun) without having obtained a permit to carry the same, third degree, contrary to N.J.S.A. 2C:39-5b (count three); possession of a weapon (a .45 caliber handgun) for an unlawful purpose, second degree, contrary to N.J.S.A. 2C:39-4a (count four); possession of a firearm (a .22 caliber handgun) without having obtained a permit to carry the same, third degree, contrary to N.J.S.A. 2C:39-5b (count five); and possession of a firearm (a .22 caliber handgun) for an unlawful purpose, second degree, contrary to N.J.S.A. 2C:39-4a (count six).

Defendant, Persha and Jamillah Bearfield were charged in Indictment No. 00-08-2149 with conspiracy to commit murder, second degree, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); the purposeful or knowing murder of Dwayne A. Charity, first degree, contrary to N.J.S.A. 2C:11-3a (count two); possession of a firearm (a handgun) without having first obtained a permit to carry the same, third degree, contrary to N.J.S.A. 2C:39-5b (count three); and the possession of a weapon (a handgun) for an unlawful purpose, second degree, contrary to N.J.S.A. 2C:39-4a (count four).

In addition, defendant was charged in Indictment 00-08-2148 with possession of a weapon, while having been previously convicted of a crime, second degree, contrary to N.J.S.A. 2C:39-7b.

On December 18, 2000, defendant pled guilty to all charges in the three indictments. Defendant agreed to testify truthfully against his co-defendants if the matters proceeded to trial. In exchange for defendant's agreement to testify, the State agreed to dismiss Indictment No. 00-08-2150, in which defendant was charged with second-degree possession of a handgun by a previously convicted felon, and recommend an aggregate sentence of 30 years with a 30-year period of parole ineligibility. However, as the Assistant Prosecutor Linda Child-Swift stated on the record, "If the defendant for some reason does not testify in accordance with this plea agreement, this offer, this plea agreement will become . . . null and void and the defendant will be sentenced to two consecutive life terms." The judge asked whether both sentences would be with 30-year periods of parole ineligibility. The assistant prosecutor said that the judge was correct and defense counsel Peter Liguori agreed.

Ligouri added that he wanted to make clear that if the co-defendants pled guilty, and defendant's testimony was not required, defendant would still get the benefit of the plea agreement, specifically an aggregate sentence of 30 years with a 30-year parole disqualifier. Ligouri also said that if the matters were tried, and defendant refused to testify truthfully at those trials, defendant would be sentenced to two consecutive life terms, each with a 30-year period of parole ineligibility. Ligouri asked defendant whether he understood the terms of the agreement and defendant replied, "Yes, sir."

Defendant was then sworn. The judge explained the terms of the plea agreement and defendant stated that he understood the terms. Defendant said that he had not been forced or threatened to plead guilty. He stated that he was pleading guilty to the charges in the three indictments because he was guilty. The judge also asked defendant whether his attorney had explained the plea form with him before he initialed and signed it. The defendant's response was "Yes." Defendant also told the judge that he had enough time to discuss the plea with his attorney.

Defendant testified concerning the charges in Indictment No. 00-08-2147. He stated that he conspired with James, Persha and McAdams to murder Clarence Clark. Defendant asserted that he and his co-defendants waited for Clark at a particular location and when Clark arrived, he shot Clark about three times in the neck and jaw with a .45 caliber handgun, and Persha shot Clark several times with a .22 caliber handgun. Defendant admitted that he did not have a permit to carry either weapon.

Defendant also testified about the charges in Indictment No. 00-08-2149. He said that he had conspired with Persha and Bearfield to kill "some dude [that Bearfield] had an argument with." Bearfield told him that the "dude" had punched her in the face. She asked defendant for a gun but defendant decided to "shoot for her" because Bearfield was a close friend. Persha provided defendant with a .45 caliber handgun. Bearfield drove defendant and Persha to the location where the argument had taken place. When they saw the man who supposedly punched Bearfield, defendant began "letting off shots." But he did not hit the intended victim. Rather, he shot an innocent bystander, Dwayne Charity. Defendant admitted that he did not have a permit to carry the handgun.

Finally, defendant testified concerning the charge in Indictment No. 00-08-2148 of possession of a weapon by a convicted felon. He admitted possessing the weapon. Defendant also stated that he had been previously convicted of receiving stolen property.

Assistant Prosecutor Child-Swift informed the judge that she was satisfied with the factual bases provided by defendant for the pleas. The judge then entered the guilty pleas on all charges in the three indictments and revoked bail pending sentencing. Ligouri told the judge that he had conferred with Child-Swift about a transfer of defendant out of Essex County. He said, "We're going to work on doing that." The judge replied, "Very good." Ligouri suggested a transfer to Somerset County. He stated, "It seems to be easy back and forth from there and it's a facility, as I understand, . . . that was receiving people who were in need of protective custody." The judge replied that counsel should present him with an order that was acceptable and he would sign it. Child-Swift commented, "The State has no objection."

Defendant was not called to testify on the charges in Indictment No. 00-08-2149 because Persha entered a plea and the charges against Bearfield were dismissed. However, on December 18, 2002, defendant was called as a witness at the joint trial of Norman James and Clifford McAdams on the charges in Indictment No. 00-08-2147. Defendant refused to testify. He said, "I don't want to be here, and I'm not going to testify." The trial judge informed defendant that, if he persisted in refusing to testify, he could be held in contempt and sentenced to a custodial term of six months, to run consecutive to any sentences imposed for the murder convictions. Defendant told the judge that he understood.

The following day, defendant was called again as a witness and again he refused to testify. The judge asked defendant whether there was any reason why he should not be found in contempt. Defendant said that he had previously admitted committing the murder and he did not think he needed to testify. The judge found defendant guilty of contempt and sentenced defendant to a custodial sentence of six months, consecutive to any sentence defendant imposed on Indictments Nos. 00-08-2147, 00-08-2148 and 00-08-2149.

On January 17, 2003, defendant appeared for sentencing. Ligouri argued that the State breached its agreement with defendant by failing to protect defendant. Ligouri asserted that defendant did not testify at trial because, when he was brought to the Essex County court house, someone who knew his street name threatened him and said that he "better not testify." Ligouri said that the threats "are very real." James, he said, is known as a violent person and the only reason defendant did not cooperate was because of threats to his family and his children. Defendant addressed the judge and said:

I just wanted to let you know that I have been threatened, my family has been threatened, way before the trial begun [sic], and way before Mr. Norman James had got in custody he had made a phone call to my family, talked - talked to my daughter, they can get her, too, if things wouldn't go right. And once trial came there was someone in the cell next to - I don't even know his name, he knew me by my street name - and he started naming names and stuff that could happen to my family if I was to testify.

Ligouri asked the judge to sentence defendant in accordance with the plea agreement or declare the plea null and void.

Assistant Prosecutor Michael White, who had assumed responsibility for the matter, disputed Ligouri's contentions and maintained that defendant breached his agreement to testify. White said that he seriously doubted whether defendant had ever been threatened. Defendant did not mention the alleged threats to anyone in the prosecutor's office until after he had been sentenced on the contempt conviction.

The sentencing judge found that defendant breached the plea agreement by refusing to testify. The judge rejected defendant's claim that he did not testify because of threats to defendant and his family. The judge stated:

I cannot for the life of me believe that you thought that if you testified against individuals in homicides there would not be threats made. I can't believe that. That if, in fact, you testified against I believe four different individuals that they're involved in homicides, I don't know that you thought they were going to come up and kiss you, shake your hand, or just forget about it. I don't believe it. I don't understand that you were in great fear all of a sudden after you made this deal. The deal required you to, in fact, testify against people that you were involved in allegedly during the course of homicides, and they would not be happy, and so I cannot say that you should have been surprised, shocked, or in any way unprepared for the displeasure that you would have incurred by your alleged cohorts.

On the charges in Indictment No. 00-08-2147, the judge merged count one (conspiracy to commit murder) with count two (murder) and imposed a term of life imprisonment with a 30-year period of parole ineligibility. The judge merged count three (possession of a .45 caliber handgun without a permit) with count four (possession of a .45 caliber handgun for an unlawful purpose) and sentenced defendant to a concurrent term of ten years. The judge merged count five (possession of a .22 caliber handgun without a permit) with count six (possession of .22 caliber handgun for an unlawful purpose) and sentenced defendant to a concurrent term of ten years. Penalties and assessments were also imposed.

On the charges in Indictment No. 00-08-2149, the judge merged count one (conspiracy to commit murder) with count two (murder) and sentenced defendant to a consecutive term of life imprisonment with a 30-year period of parole ineligibility. The judge merged count three (possession of a weapon without a permit) with count four (possession of a weapon for an unlawful purpose) and sentenced defendant to ten years to run concurrent with the sentence on count two and the sentences on the charges in Indictment No. 00-08-2147. The judge additionally imposed penalties and assessments.

Finally, the judge sentenced defendant to ten years on the count in Indictment No. 00-08-2148, to run concurrent with the sentences imposed on the other convictions. Penalties and assessment were also imposed.

Defendant appealed and the matter was listed for argument on the January 29, 2004 excessive sentencing calendar. After argument, we entered an order remanding the matter to the trial court for a plenary hearing on the issue of the breach of the plea agreement.

Following the hearing, Judge Betty J. Lester set forth her decision on the record. The judge rejected defendant's contention that the State had agreed to make special security arrangements for defendant as a condition precedent to his testifying at the trials of his co-defendants. The judge said that defendant breached the agreement by refusing to testify. She said:

I am well aware that [defendant] again thinks he had reasons for doing so. Namely the conversation in the cell block that was overheard by the witness and - or I should say the inmate, the other inmate and the threat that he felt for his safety.

I reject the contention that that was [defendant]'s motivation for the following reason:

[Defendant] in other statements before the court acknowledged that Norman James and his cohorts had already been threatening him and certainly [defendant] was not oblivious to the fact that testifying against Mr. James, who notoriously is someone who deserved to be feared, it was not a tenuous position to be in. In other words, Mr. James and the gang was already threatening [defendant] and his family according to [defendant] himself. That had already happened at the time he agreed to testify for the State. And it's possible that it continued to happen. The court just simply finds that the fact that some unknown inmate made some comment to him was not the real motivating factor or the straw that broke the camel's back. Even if it was, it was certainly not the [fault] of the State of New Jersey.

* * *

Having already found that there was no particular duty or expectation as part of the plea agreement to house [defendant] in a certain way or treat him in a certain way as a condition precedent to him pleading, I can find no conduct on the part of the State of New Jersey that leads him into any breaches. [Defendant] simply did what he did for his own reasons.

III.

On this appeal, defendant raises the following contentions for our consideration:

POINT ONE: THE COURT MUST VACATE THE PLEA OR GRANT DEFENDANT THE BENEFIT OF THE PLEA BECAUSE THE STATE PLEDGED TO PROTECT DEFENDANT AS A CONDITION OF THE PLEA AND IT DID NOT PROTECT HIM, OR BECAUSE DEFENDANT REASONABLY BELIEVED THE STATE HAD MADE SUCH A PLEDGE AS A CONDITION OF THE PLEA, WHICH ESTABLISHED GOOD CAUSE FOR NOT TESTIFYING.

A. BECAUSE THE STATE BREACHED THE PLEA AGREEMENT BY FAILING TO PROTECT DEFENDANT, THE PLEA SHOULD BE VACATED OR DEFENDANT SHOULD RECEIVE THE BENEFIT OF THE PLEA.

B. BECAUSE DEFENDANT REASONABLY BELIEVED THE STATE PLEDGED AS PART OF THE PLEA TO PROTECT HIM, AND IT FAILED TO DO SO, THE PLEA SHOULD BE VACATED OR DEFENDANT SHOULD RECEIVE THE BENEFIT OF THE PLEA.

C.DEFENDANT HAD GOOD REASON FOR NOT TESTIFYING AND THEREFORE SHOULD RECEIVE THE BENEFIT OF THE PLEA.

POINT TWO: THE CONTEMPT CONVICTION, IMPOSED WHEN DEFENDANT FAILED TO TESTIFY, MUST BE VACATED BECAUSE DEFENDANT REFUSED TO TESTIFY IN ORDER TO PROTECT HIMSELF AND HIS FAMILY, AND AFTER THE STATE FAILED TO PROTECT HIM.

POINT THREE: THE COURT MERGED THE WRONG WEAPONS POSSESSION CONVICTIONS.

POINT FOUR: THE MAXIMUM AND CONSECUTIVE SENTENCES MUST BE VACATED BECAUSE THEY VIOLATE DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY, PROOF BEYOND A REASONABLE DOUBT, DUE PROCESS OF LAW, AND RIGHT TO INDICTMENT, AND BECAUSE THEY ARE EXCESSIVE.

We turn first to defendant's contention that the sentences imposed contravene the plea agreement because the State allegedly agreed as a condition of the plea to protect defendant and failed to do so. As we stated previously, following the remand hearing, the judge expressly found that the plea was never conditioned upon the State providing protection to defendant.

In reviewing the judge's factual determination, we are guided by several well established principles of appellate review. The findings of fact made by a judge sitting without a jury "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We must defer to the judge's factual findings when they are "substantially influenced" by the judge's opportunity to hear and see and witnesses. State v. Locurto, 157 N.J. 463, 470-71 (1999)(citing State v. Johnson, 42 N.J. 146, 161 (1964)). An appellate court may not overturn a factual finding of a trial judge unless it is convinced that the finding is "clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Id. at 471 (citing Johnson, supra, 42 N.J. at 162).

We are satisfied that the judge's findings are supported by substantial credible evidence. The terms of the plea arrangement were set forth on the record before the court on December 18, 2000. The terms did not include any agreement by the State to protect defendant. The judge asked defendant whether any promises other than those placed on the record had been made to induce him to plead guilty and his response was "No." Similarly, the plea form required defendant to indicate whether any promises had been made to cause defendant to enter the plea, other than those specifically stated on the form. The defendant answered "No."

Assistant Prosecutor Child-Swift testified at the remand hearing that the State made no promise to provide defendant special protection as a condition of the plea. Child-Swift stated that she agreed to defendant's application for a transfer from Essex County to the Somerset County jail pending the trials of defendant's co-defendants, but the assistant prosecutor said she agreed to the transfer in part because a defendant often will be threatened if he agrees to testify against a co-defendant. The testimony clearly supported the judge's determination that, although the assistant prosecutor had agreed to transfer defendant to the Somerset County jail, the State had never agreed to provide special protection to defendant as a condition of the plea.

We are further convinced that there is no merit in defendant's assertion that he should be given the benefit of the plea because he reasonably believed the State would protect him. In our view, defendant did not have a reasonable basis for such a belief because the terms of the plea placed on the record did not include any provision for special protection. Moreover, defendant testified at the remand hearing that he was moved from the Essex County jail because he was "being threatened." Despite those threats, he agreed to testify against James, a person with a well known reputation for violent crime.

Defendant said that he continued to receive threats after the transfer. He testified that the mother of his child had received a call from James and she had been told that they "could get her" if defendant testified against James. Defendant also asserted that when he was brought to the Essex County court house for trial on December 18, 2002, he was threatened by some unnamed individual in an adjoining holding cell, who said that defendant's family was going to "get it" if he testified against James. The alleged threat was not corroborated and, when he was called to testify at trial, defendant did not inform the trial judge that he had been threatened.

As the judge noted in her decision following the remand hearing, defendant could well expect that his co-defendants would not be pleased to learn that he would be testifying against them at their trials. Defendant should not have been surprised that he would be threatened with harm if he carried out his agreement to testify truthfully against his accomplices. Defendant said he was threatened but none of the threats was corroborated. Even were we to accept defendant's assertions that he was threatened, we are not convinced that defendant's refusal to testify was due to a reasonable belief that the State would protect him. We are satisfied that there is substantial credible evidence to support the judge's finding that defendant refused to testify for reasons other than an expectation that he would be protected by the State.

We therefore are satisfied that the judge did not err in concluding that defendant breached his plea agreement by refusing to testify at the trial of his co-defendants. As the State points out, this is a situation where defendant is endeavoring to have "his cake and eat it too." In the plea agreement, defendant obtained the State's agreement to recommend an aggregate sentence of 30 years, with a 30-year period of parole ineligibility, despite his admitted involvement in two murders. In exchange for that recommendation, defendant was required to truthfully testify against his co-defendants. Defendant refused to testify and yet he wants to retain the benefits of the plea based on his unproven assertion that the State breached a promise to provide him with protection. We are convinced that in the circumstances defendant is not entitled to the benefit of the plea and he was properly sentenced to consecutive life sentences, each with 30-year periods of parole disqualification, as a consequence of his breach of the plea agreement.

We next consider defendant's contention that the judge erred in merging defendant's weapons convictions. The State agrees that the judge merged the wrong convictions. Therefore, we will remand the matter to the trial court for entry of corrected judgments of conviction, with instructions that the judge merge defendant's convictions for possession of weapons for an unlawful purpose with his murder convictions and separately sentence defendant on the convictions for unlawful possession of weapons without a permit.

We turn to defendant's contention that his sentences contravene the Sixth Amendment under the principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), where the Court held that a sentence imposed based on a judicial finding of fact which exceeds the maximum sentence authorized by a jury verdict or defendant's admission contravenes the Sixth Amendment. In State v. Natale, 184 N.J. 458 (2005), our Supreme Court determined that the imposition of a sentence under our Code of Criminal Justice that exceeds the presumptive statutory term violates the Sixth Amendment if the sentence is based on a judge's finding of aggravating factors other than the fact of a prior criminal conviction. Id. at 466.

Defendant argues that the imposition of life sentences on the murder convictions based on the judge's findings of aggravating factors is unconstitutional. Defendant also argues that the consecutive sentences contravene his right to a jury trial under the Sixth Amendment. We disagree. Both contentions were expressly rejected in State v. Abdullah, 184 N.J. 497 (2005). There, the Court held that imposition of a life sentence for murder based on a judge's findings of aggravating factors does not run afoul of the Sixth Amendment. Id. at 507-08. The Court also held that Blakely does not require that a jury make findings of fact necessary for the imposition of consecutive sentences. Id. at 512-15.

Defendant additionally argues that the ten-year sentences separately imposed on his convictions for possession of weapons for an unlawful purpose violate Blakely. However, in view of our determination that the judge erred in failing to merge those convictions with the murder convictions, the issue is moot.

Finally, we consider defendant's contention that the imposition of two consecutive life sentences with an aggregate 60-year period of parole ineligibility is excessive. Here, defendant targeted two victims in separate incidents. He shot Clarence Clark three times and he fired six shots at Dwayne Charity, who was not even his intended victim but was instead an innocent bystander. The sentencing judge found aggravating factors under N.J.S.A. 2C:44-1a(1) (the offenses were "particularly depraved"); N.J.S.A. 2C:44-1a(3) (risk of re-offense); N.J.S.A. 2C:44-1a(6) (defendant's prior criminal record was extensive and serious); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors.

In our view, the judge did not abuse his discretion by imposing consecutive life sentences on the murder convictions. The murders were separate and distinct acts of violence, involving multiple victims, and were predominantly independent of each other. In the circumstances, the imposition of consecutive sentences represents an appropriate application of the factors 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)(setting forth guidelines for the imposition of consecutive sentences). Moreover, the consecutive life sentences, with the aggregate 60-year period of parole ineligibility, are not manifestly excessive or unduly punitive and do not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16, (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed in part, reversed in part and remanded for entry of corrected judgments of conviction merging the convictions for possession of a weapon for an unlawful purpose with the murder convictions and sentencing of defendant separately on the convictions for unlawful possession of weapons without a permit.

 

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A-0691-03T4

October 20, 2005