STATE OF NEW JERSEY v. HASSAN K. BARNES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2907-03T42907-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN K. BARNES,

Defendant-Appellant.

________________________________

 

Submitted: November 15, 2005 - Decided:

Before Judges Axelrad and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 01-11-4588.

Yvonne Smith Segars, Public Defender, attorney for appellant (Barbara Hedeen, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Joan E. Love, Special Deputy Attorney General, of counsel).

PER CURIAM

Defendant Hassan K. Barnes and co-defendant Barry James were indicted on grounds of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 (count one); first-degree murder of Troy Jones, N.J.S.A. 2C:11-3a(1) & (2) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four). Following a Miranda hearing in which defendant's prior confession was found to be admissible, defendant was acquitted by a jury of conspiracy and convicted of aggravated manslaughter, the lesser-included offense of murder. He was also convicted on both weapons offenses. On the aggravated manslaughter conviction, the court imposed a twenty-five year custodial term, with an 85% period of parole ineligibility under NERA. The court also imposed concurrent terms of eighteen months on count three and five years on count four, as well as statutory mandated fines, penalties and fees on all counts.

Defendant asserts the following arguments on appeal:

POINT ONE

BECAUSE DEFENDANT IS RETARDED AND UNEDUCATED, WAS A CHRONIC USER OF MARIJUANA DIPPED OR SOAKED IN "EMBALMING FLUID," AND WAS UNDER THE INFLUENCE OF THAT SUBSTANCE AT THE TIME OF HIS ARREST, HIS STATEMENT TO THE POLICE WAS NOT MADE VOLUNTARILY AND THE TRIAL COURT'S REFUSAL TO SUPPRESS THE STATEMENT DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. Const. Amend. V, XIV; N.J. Const. Art. I, 1.

POINT TWO

THE POLICE OFFICER'S TESTIMONY THAT AN ANONYMOUS CALLER IDENTIFIED DEFENDANT AS ONE OF THE TWO INDIVIDUALS INVOLVED IN THE HOMICIDE WAS A PLAIN-ERROR VIOLATION OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION, THE HEARSAY PROHIBITION OF THE EVIDENCE RULES AND STATE V. BANKSTON, 63 N.J. 263 (1973). U.S. CONST. AMEND. VI AND XIV; N.J. CONST. ART. I. 1, 10. (Not Raised Below).

POINT THREE

THE ADMISSION OF HIGHLY PREJUDICIAL TESTIMONY BY INVESTIGATOR HARRIS THAT DEFENDANT HAS A CRIMINAL RECORD AND PHOTOGRAPH, THAT HE WAS A DRUG DEALER, AND THAT HE WAS BEING HELD AT THE POLICE STATION FOR A DIFFERENT CRIME, WITHOUT ANY LIMITING INSTRUCTION FROM THE COURT, VIOLATED N.J.R.E. 404(B) AND DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, 1 (Not Raised Below).

POINT FOUR

THE TRIAL COURT'S "FLIGHT" CHARGE WAS INCORRECT AND NOT SUPPORTED BY ANY EVIDENCE, THEREBY DENYING DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT FIVE

THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, 1, 10 (Not Raised Below).

POINT SIX

THE SENTENCE IS ILLEGAL BECAUSE SENTENCES IN EXCESS OF THE PRESUMPTIVE TERM VIOLATE BLAKELY V. WASHINGTON, 124 S. Ct. 2531 (2004) AND STATE V. NATALE, 373 N.J. SUPER. 226 (APP. DIV. 2004).

We are not persuaded by the first five arguments and affirm defendant's conviction. However, we vacate 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).

The charges arose out of the fatal beating of Troy Jones (Troy) on the morning of April 5, 2001. Tonya Jones (Tonya), a friend of defendant and co-defendant, testified that while driving her friend's gold Acura on South Harrison Street in Orange, she was flagged down by James. He got into the car and told Tonya that defendant had just been robbed and asked her to drive him to defendant. They then spotted defendant walking towards the car. Defendant told James and Tonya he thought he knew where his "stuff" was, climbed into the back seat, and they went looking for Troy.

Tonya pulled over after they spotted Troy walking on Oakwood Avenue toward Main Street. Defendant got out of the car and placed a coat in the trunk. He then began fighting with Troy, after which James entered the fight. Troy ran across the street, pursued by defendant and co-defendant. Tonya then saw defendant strike Troy several times in the head with a U-bar or tire iron, while James struck him in the face with his fist. On direct, Tonya testified that after the victim fell to the ground, James went through his pockets. She further testified that the two men returned to the vehicle and she dropped them off a few blocks away and went home. On cross-examination, she testified that defendant returned to the car while the victim was still on his feet, and James continued to strike him until he fell, and then went through his pockets. She later learned the victim had died. Tonya subsequently gave a statement to the police, named defendant and co-defendant as the assailants and identified them in a photo array.

Kim Jones (Kim), who gave a statement to the police that afternoon, testified that on her way to work at the Oakwood Avenue School, she saw two men beating another man and yelling "get him" or "hold him." She did not observe any weapons. The victim began running away and was chased by the men. Then one of the attackers entered a cab, presumably to follow the victim. A few days later she identified defendant from a photo array as one of the attackers and the one who entered the cab.

The responding officers observed the victim laying face down, bleeding from the head with a fatal skull wound. Witnesses advised that a gold Acura with two passengers had fled the scene. The victim died of trauma from a blunt instrument.

About a week later Investigator Harris received an anonymous call from a female who implicated defendant and co-defendant in the incident. A criminal record check and photographs of the two men were obtained and a computer alert was sent that they were wanted for questioning.

On June 7, 2001 Investigator Harris was informed by the East Orange police that defendant had been arrested at about 2:00 p.m. on an unrelated matter and was in custody. Investigator Harris arrived at about 4:00 p.m. and, upon seeing the officer, defendant began blurting things out and crying. Defendant and the officer went down to the detective bureau in the basement, after which Investigator Harris read defendant his Miranda rights. The officer testified that defendant had calmed down by that time and did not appear to be physically injured or under the influence. Defendant again indicated he wanted to speak with Investigator Harris. The officer then read a complete Miranda waiver form to defendant and had him also read it aloud, initialing each statement. Defendant signed the waiver form in the presence of Investigator Harris and Detective Webster, who had arrived about forty-five minutes after they went down to the basement.

Defendant made a statement that Troy approached him and James in front of 158 South Harrison Street to buy drugs, but after some initial discussion, Troy grabbed the drugs and ran. Defendant chased Troy and threw him to the ground. Troy grabbed more drugs from him and ran towards Oakwood Avenue. Defendant went looking for him with James and Tonya. When they found him, the men jumped out of the car and punched and kicked him. At first, defendant said that Troy swung a pipe at him and he grabbed it; then he said he got the pipe out of the back of the car. Either way, defendant admitted he struck Troy with the pipe two or three times on the back, neck and head. Troy fell to the ground, defendant got back into the car, threw the pipe in the back and left. Defendant provided specific details about Tonya ("Tweets"), the gold Acura, the $3500 worth of Pyramid cocaine he claimed the victim took from him, and the cab he rode in before meeting Tonya and James.

Defendant began making his statement at about 5:45 p.m. and concluded at 7:15 p.m. Investigator Harris transcribed it, printed it out, and defendant read each of the five pages and signed and dated it. At 7:30 p.m., defendant positively identified James and Tonya from a photo array.

At trial, defendant testified that the victim punched him in the face twice, took about $100 from his hand that he was using to purchase drugs from James, and ran. Defendant chased him, grabbed him and demanded his money back. Troy grabbed his wallet and fled. He took a cab but did not find Troy, saw Tonya and James, and together they found Troy. Defendant and James began fist fighting with Troy. Troy swung a pipe at defendant, which defendant grabbed and hit Troy. Defendant left the pipe at the scene and got into Tonya's car. According to defendant, he left Troy standing; Troy fell to the ground only after James punched and kicked him.

Defendant testified he had smoked some marijuana cigarettes dipped in embalming fluid ("leaks") on the day he was arrested. He disputed most of the information in the written statement. He asserted that he did not recall giving some answers, being asked certain questions or identifying James and Tonya from a photo array.

During the two-day Miranda hearing, the trial judge heard extensive testimony. Investigator Harris testified as to the circumstances and content of defendant's confession, including his perception that at the time defendant made the statement he was not under the influence of drugs, had calmed down, had stopped crying, and seemed to understand and respond appropriately to all questions. Anthony Cox, the East Orange officer who arrested defendant and transported him to headquarters, testified that defendant tried kicking out the back window of the police car after being arrested. Additionally, prior to Harris' arrival at headquarters, defendant banged his head against the wall of a detention cell, set the leg of his pants on fire, cried intermittently and appeared agitated. The fire was quickly extinguished and the EMTs determined that defendant was not burned or harmed by the fire.

Defendant's expert Dr. Peter Crain, a neuropsychiatrist, opined that defendant had difficulty reading, functioned at a first-grade level, had an I.Q. in the range of 50-55 and was moderately mentally retarded. His short and long term memory, however, was intact as evidenced by the details he was able to remember of the homicide. Dr. Crain opined that defendant's drug use, combined with his retardation and agitation at the time of the arrest, would have resulted in an inability to focus clearly. The expert concluded that defendant could not give a knowing and voluntary waiver of his Miranda rights, though he was capable of making a knowing plea.

Dr. Azariah Eshkenazi, a forensic psychiatrist, testified for the State. Based on his interview with defendant, who was cooperative and answered all questions appropriately, including explaining each Miranda right, the expert determined defendant's I.Q. to be in the mildly retarded range between 75 and 85. Defendant told him he made a good living selling drugs, had been arrested previously and had pled guilty. Defendant admitted he hit the victim on the head with a crowbar after the victim took his drugs and fled. Dr. Eshkenazi observed nothing in defendant's intellectual abilities that prevented him from functioning at a normal level, and he opined there was no psychiatric reason why defendant would not have understood his Miranda rights. He further opined that the effects of any marijuana and embalming fluid he may have smoked would have worn off by the time he gave his written statement.

Defendant testified he was in the seventh grade when he left school at fifteen years old. He had smoked "leak" for about four years and while under the influence he had no sense of touch or smell, and later felt exhausted. He remembered smoking leak the morning of his arrest. He had no recollection of being violent or setting his pants on fire, although he did remember being in an ambulance. Defendant denied being given Miranda warnings. He also denied giving a statement, though he acknowledged his signature and initials on the document. Defendant claimed Detective Harris typed the statement himself. Defendant further alleged he was beaten by East Orange police officers but could not recall who was involved in the beating.

In concluding that defendant intelligently and voluntarily waived his rights and made the statement, Judge Vasquez detailed the testimony of each witness and provided credibility assessments and specific explanations for his conclusions. He credited Investigator Harris' testimony that he followed proper procedures in administering the Miranda rights to defendant. The judge found more persuasive the conclusions of the State's expert about defendant's mental capabilities, and explained with specificity the reasons he was "not comfortable with [Dr. Crain's] opinion . . ." He found defendant's understanding of the words "paranoid" and "hallucinate" indicated he had a higher I.Q. than a first grader. The judge explained why he did not find defendant to be a credible witness. For example, he found defendant's memory loss to be selective and his blank stare to be an act. The judge also considered that the twenty-three-year-old defendant had a lengthy criminal history and had been exposed to Miranda warnings prior to this case; he had never been deemed incapable of understanding the warnings or voluntarily pleading guilty to other charges.

Judge Vasquez further noted that defendant was arrested at about 2:00 p.m. and executed the Miranda waiver at about 5:45 p.m., and concluded that defendant was not under the influence of drugs during the interrogation and statement:

[Defendant] said he used seven leak cigarettes a day. He, specifically, didn't say what drugs he used on the day in question, or how much or, very importantly, what effect, if any, it had on him; didn't recall that, except he did say that he always had one first thing in the morning and thinks he had one before they "grabbed him up."

Most of the information we have about embalming fluid as a drug came from the defendant himself, who, of course, hasn't qualified as an expert, but all the information he gave as effects of embalming fluid on himself did not relate to the day in question, but in general on days when he had seven embalming fluid dipped cigarettes . . . one of the effects it had was that when he came down from using the . . . leak-dipped cigarettes . . . that he would be very tired and have to sleep 10 hours . . .

. . . .

And Dr. Eshkenazi, while acknowledging not an expert in embalming fluid, per se, did venture an opinion that the effects of embalming fluid would wear off between the time that [defendant] had been arrested and the time that he gave the statement. That would seem to jibe both with the facts testified to by the officers as well as the testimony of the defendant himself . . . smoking a cigarette two hours, and then having to smoke another cigarette it would appear that the effects of the cigarette would wear off after two hours.

We discern no basis to second guess the factual findings and legal conclusions of the trial judge who clearly had a feel for the case. State v. Johnson, 42 N.J. 146, 164 (1964). We are satisfied Judge Vasquez considered the appropriate factors in evaluating defendant's confession, including his "age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993). The record fully supports the trial court's conclusion that, under the totality of the circumstances, defendant intelligently, knowingly and voluntarily waived his right to remain silent. State v. Knight, 183 N.J. 449, 461 (2005).

Defendant's arguments pertaining to Investigator Harris' testimony are without merit and do not warrant extensive discussion. Rule 2:11-3(e)(2). Although the officer's testimony referencing the anonymous call implicating defendant and co-defendant was improper hearsay, it was harmless error. State v. Bankston, 63 N.J. 263 (1973). The evidence against defendant was overwhelming. Defendant, in both the confession and trial, as well as Tonya, testified that defendant fought with the victim and struck him with a blunt instrument.

Nor did Investigator Harris' testimony that he secured defendant's criminal history and photograph, that defendant "used to sell drugs at that location" or that he interviewed defendant while he was being held at police headquarters on a different case, constitute plain error having a clear capacity to lead to an unjust result. R. 2:10-2. Defendant testified he had two prior convictions; therefore, his photograph would be in police files. None of the details of defendant's criminal history were given; no reference was made to the multitude of his arrests; and there was no suggestion he had been involved previously in a similar crime. Defendant himself testified about kicking the window in the police vehicle and allegedly being beaten by the East Orange police while being transported to headquarters; so, Detective Harris' statement that defendant was in custody for an unrelated matter would not have tainted defendant's trial.

The officer's testimony that defendant used to sell drugs on South Harrison Street was not a Rule 404(b) violation. Rather it was part of the res gestae of the charged offense because it painted a picture of the events before the killing, demonstrated a reason for the fighting and was admissible on the issue of motive for the beating. State v. Louf, 64 N.J. 172, 178 (1973); State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995); State v. Yormark, 117 N.J. Super. 315, 336 (App. Div. l971). Moreover, defendant admitted that he and co-defendant were involved in a drug transaction with the victim and that the victim stole a substantial quantity of cocaine from him. Additionally, the court gave a limiting instruction that defendant's possible drug possession could only be considered in connection with motive for the killing, and there is nothing in the record to suggest the jury disregarded that instruction. State v. MacIlwraith, 344 N.J. Super. 544, 547 (App. Div. 2001).

The flight charge was supported by the evidence and tracked the Model Jury Charge. State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, Sullivan v. New Jersey, 382 U.S. 990 (1966). There was evidence that defendant and co-defendant were involved in a fist fight with the victim, defendant beat him with a blunt instrument, and they drove away with Tonya, leaving the victim bleeding and lying on the ground, either dead or dying. Thus, there was sufficient evidence upon which the jury could infer that defendant's departure from the scene of the beating was done with a guilty conscience and in an effort to avoid arrest.

Defendant received higher than presumptive terms on all counts, with the two third-degree weapons offenses imposed concurrent to the first-degree aggravated manslaughter offense. The court found aggravating factors three, six and nine, based on defendant's extensive criminal record, including four adjudications of delinquency as a juvenile, and two prior indictable drug convictions.

The court's imposition of greater than the presumptive sentence brings into play our Supreme Court's recent decision in Natale II which abolished presumptive terms under New Jersey's sentencing scheme. 184 N.J. at 466. Under Natale II, a trial court is now required to sentence a defendant within the statutory range, after identifying and weighing applicable mitigating and aggravating factors, "without reference to presumptive terms." Ibid. This holding applies to any defendant with a case "on direct appeal as of the date of [the Natale II] decision . . ." Id. at 494. Any such defendant is entitled to "a new sentencing hearing . . . based on the record at the prior sentencing." Id. at 495. "At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

The trial court sentenced defendant to a term of imprisonment in excess of the presumptive term. Defendant's case was on direct appeal to this court when Natale II was decided. Therefore, defendant is entitled to a new sentencing hearing in which the presumptive statutory term for each of the offenses is not considered.

Accordingly, we affirm defendant's convictions. We vacate defendant's sentence and remand the case to the trial court to resentence defendant in conformity with Natale II.

 

No relation to the victim.

No relation to Troy or Tonya.

When questioned about the discrepancy, defendant said "[t]he last statement I gave you was correct because I didn't want to look like I just straight up killed him on purpose."

(continued)

(continued)

17

A-2907-03T4

December 8, 2005