STATE OF NEW JERSEY v. ANTHONY KIDD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2487-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY KIDD,

Defendant-Appellant.

_____________________________

 

Submitted September 13, 2005 - Decided

Before Judges Kestin, R. B. Coleman, and Seltzer.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, 02-11-1492.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Leslie-Ann M. Justus, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was indicted in Mercer County, Indictment No. 02-11-1492-I, charged with second-degree eluding, contrary to N.J.S.A. 2C:29-2b (Count I); first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 and 2C:11-3a (Counts II and VI); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) (Counts III and VII); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) (Counts IV and VIII); fourth-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(4) (Counts V and IX); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count X); fourth-degree tampering with evidence, contrary to N.J.S.A. 2C:28-6(1) (Counts XI and XIV); second-degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7 (Count XII); and unlawful possession of a stun gun, contrary to N.J.S.A. 2C:39-3(h) (Count XIII).

Count XII was dismissed on motion of the prosecutor and Count XIII was severed for later disposition. After a ten-day trial, defendant was convicted on all counts except those alleging attempted murder (Counts II and VI). Defendant then pled guilty to the severed Count XIII. He was sentenced to ten year's imprisonment on Count I with a five year period of parole ineligibility; an extended term of twenty year's imprisonment, pursuant to N.J.S.A. 2C:44-3a ("Persistent Offender Statute"), on Count III with a ten year period of parole ineligibility pursuant to the pre-2001 amendments to the "No Early Release Act" N.J.S.A. 2C:43-7.2 ("NERA"), and the Graves Act, N.J.S.A. 2C:43-6c; ten years imprisonment on Count VII with an eight and one-half year period of parole ineligibility pursuant to NERA and the Graves Act; seven years imprisonment on Count XII with a five year parole period of ineligibility pursuant to the Certain Persons Not To Possess Weapons Statute, N.J.S.A. 2C:39-7b; and two concurrent terms of eighteen months on Counts XI and XIV.

The convictions on Counts IV, V and X had been merged into the conviction on Count III and the convictions on Counts VIII and IX had been merged into the conviction on Count VII for sentencing purposes. Judge Delehey made the sentences on Counts I, III, VII and XII consecutive to each other and consecutive to defendant's sentences imposed on two unrelated drug offenses. Defendant's aggregate sentence was forty-seven years with twenty-eight and one-half years of parole ineligibility.

Defendant now appeals from both the conviction and the sentence imposed. We reject each of the challenges to the conviction but believe that defendant must be re-sentenced in accordance with the principles recently enunciated in State v. Natale, 184 N.J. 458, State v. Abdullah, 184 N.J. 497 (2005) and State v. Franklin, 182 N.J. 147 (2005).

As to the conviction, defendant raises the following arguments:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S REQUEST TO REMOVE TWO JURORS AS A RESULT OF JURY TAINT AND FURTHER ERRED BY

FAILING TO DECLARE A MISTRIAL AS A RESULT

OF THE FAILURE OF VARIOUS JURORS TO ADHERE

TO THE COURT'S ADMONITION NOT TO DISCUSS

THE CASE DURING THE TRIAL.

POINT II: THE TRIAL COURT ERRED IN PRECLUDING DEFENSE

COUNSEL FROM ELICITING CLEARLY RELEVANT AND

POTENTIALLY EXCULPATORY TESTIMONY.

POINT III: THE TRIAL COURT'S CHARGE TO THE JURY

REGARDING THE TESTIMONY ADMITTED PURSUANT

TO N.J.R.E. 404(B) WAS INADEQUATE,

INACCURATE AND INSUFFICIENT.

POINT IV: THE JURY'S VERDICT FINDING THE DEFENDANT

GUILTY OF COUNT I CHARGING SECOND DEGREE

ELUDING WAS AGAINST THE WEIGHT OF THE

EVIDENCE.

During the trial, Judge Delehey became aware that several of the jurors had expressed some concern relating to the courtroom presence of individuals who were evidently associated with defendant. Judge Delehey promptly interviewed the jurors, excused one, and determined that the remaining jurors could render an impartial verdict untainted by any concern for their safety.

During the course of the interrogation of the dismissed juror, Judge Delehey became aware that the jurors may have had some preliminary discussions with respect to defendant's guilt. Each juror involved in those discussions denied that the discussions represented anything other than casual remarks which did not reflect even a preliminary determination. The judge promptly repeated his preliminary instructions that the jury not discuss the case or form any opinions until instructed to so. He found that whatever discussions had occurred did not taint the ability of the jury to decide the case appropriately.

Given those findings, the judge denied defendant's motion to excuse one or more jurors or to declare a mistrial. Judge Delehey's findings and his conclusions are supported by the record and evince an appropriate exercise of discretion. We have no warrant to disturb his denial of defendant's motion. The remaining three challenges to the conviction require some brief exposition of the facts developed at trial. The State introduced evidence that authorities in Pennsylvania wanted to question defendant in connection with an incident that had occurred in that State. The Trenton police, who had been asked to cooperate with the Pennsylvania authorities and to locate defendant, received information that he was an occupant of a maroon station wagon. When a vehicle matching that description was located, Officers Wittmer and Virella attempted to stop the station wagon. As they did so, the station wagon accelerated and the officers gave chase, activating the patrol car's lights and siren. The station wagon, traveling at speeds of up to forty miles per hour on roads that were covered with ice and snow, proceeded the wrong way on a one way street, eventually fishtailed, and came to rest against a fence.

At trial, the officers testified that an individual matching defendant's description exited the car wearing a blue, hooded jacket and immediately began to fire a revolver at them. He then fled. The officers gave chase but were unable to apprehend the individual. They did, however, recover, a blue jacket near footprints leading through the snow from the abandoned station wagon. The jacket contained two dry cleaning receipts which, testimony developed, had been given to defendant by his girlfriend, who had asked him to pickup her cleaning.

Defendant sought to refute the inference that he was the individual driving the station wagon. To do this, defendant sought to elicit testimony from a police dispatcher that, some ten minutes after the initial call reporting the stop and shooting incident, an officer called in a description of the person who had exited the station wagon and fired at the officers. The call described the person as wearing a green jacket with a green bandana. That testimony, if permitted by the judge and credited by the jury, would have substantially weakened the State's case.

The court conducted an N.J.R.E. 401 hearing to determine the admissibility of the evidence. The proffered witness, the police dispatcher, testified that there were some ten officers at the scene. She was in communication that night with many of them and she did not know which officer called in the description or the manner by which the caller obtained the information.

Because the statement sought to be admitted was made by someone other than the testifying witness, it was hearsay and inadmissible, N.J.R.E. 802, unless it met one of the exceptions enumerated in N.J.R.E. 803 or 804. Defendant acknowledges that the only relevant exception is N.J.R.E. 803(a)(1) relating to prior inconsistent statements of a witness. For this exception to apply, however, the proffered statement must have been made by either Officer Wittmer or Virella (who had testified that the person exiting the station wagon was wearing a blue coat).

The dispatcher, however, as we have noted, could not identify either officer as the source of the communication. Moreover, there were many officers at the scene and there is no way of determining if the comments were made by Wittmer or Virella. Defendant argues that the report had to originate with one of them since only those officers saw the person exit the wagon. That argument is not persuasive. The record discloses that at least one other police unit was present when the first shots were fired. Moreover, one of the later responding officers might have seen another individual and assumed him to be the subject or might have repeated (incorrectly) a statement made by Virella or Wittmer.

Absent some evidence connecting the statement offered to a testifying witness, it simply fails to fall within any of the exceptions to the hearsay rule so as to justify admission. Moreover, under these circumstances, it lacks any direct evidence of guilt or innocence or even any of the indicia of reliability which might otherwise permit its admission. See State v. Cavallo, 88 N.J. 508, 526-29 (1982). Judge Delehey correctly excluded the testimony as inadmissible hearsay.

Next, the defendant challenges the trial judge's charge with respect to "other crimes" evidence. As we have noted, the prosecution provided evidence that defendant was wanted for questioning in connection with another incident in Pennsylvania. That evidence was necessary to give context to the actions of both the police and defendant. The trial judge took great pains to explain the nature of the evidence received respecting the incident in Pennsylvania about which the police wanted to question defendant. The judge then limited the purpose for which it (and similar evidence the admission of which is governed by the same considerations) was received to an explanation of defendant's intent and motive. There was no objection at trial to the way in which the issue was handled. The lack of objection strongly suggests that no prejudice had accrued. State v. Tierney, 356 N.J. Super. 468, 481-2 (App. Div.) certif. denied, 176 N.J. 72 (2003). Because there was no objection at trial, the issue is "governed by the plain error rule." State v. Green, 86 N.J. 281, 289 (1981). Our independent review of the instructions given to the jury with respect to the issue of "other crimes evidence" convinces us that the jury was appropriately instructed with respect to this evidence. There was no error, let alone plain error.

Finally, defendant asserts that his conviction on the charge of eluding was against the weight of the evidence. Judge Delehey had denied a motion for acquittal at the end of the State's presentation. In doing so, he reviewed comprehensively the evidence adduced on the eluding charge and determined that the evidence of guilt was overwhelming. We can add nothing to Judge Delehey's analysis. The argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Defendant also asserts that the sentence imposed was improper. It will be remembered that defendant was sentenced on Count I (charging second degree eluding) to a term of ten years with a five year parole ineligibility. At the time of sentencing, a second degree crime was punishable by a period of imprisonment of between five and ten years with a presumptive term of seven years. N.J.S.A. 2C:43-6(a)(2). The sentence imposed on Count I, therefore, exceeded the presumptive term and was predicated on aggravating factors other than defendant's prior criminal history. State v. Natale, 184 N.J. 458 (2005), and its companion cases, State v. Abdullah, 184 N.J. 497 (2005), and State v. Franklin, 184 N.J. 516 (2005), prohibit such a sentence. Accordingly this matter must be remanded to allow the sentencing judge to apply the Natale principles to those Counts on which a term in excess of the presumptive sentence was predicated on factors other than defendant's criminal history. Because the sentences imposed are so integrally related, we believe it appropriate to remand this matter for re-sentencing on all counts.

 
The convictions are affirmed and the matter is remanded for resentencing in accordance with Natale, Abdullah, and Franklin.

Other Counts also received sentences in excess of the presumptive sentence based on similar aggravating factors but we believe it is not necessary to identify each such sentence given our decision to return the matter for re-sentencing on all counts.

(continued)

(continued)

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A-2487-03T4

September 28, 2005