STATE OF NEW JERSEY v. JESSE TERRELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3850-03T43850-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESSE TERRELL,

Defendant-Appellant.

_______________________________________

 

Submitted October 19, 2005 - Decided

Before Judges Parker, Grall and Sapp-Peterson.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

01-04-1602.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Sylvia Orenstein,

Assistant Deputy Public Defender, of

counsel and on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Gary A. Thomas,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant Jesse Terrell appeals from a final judgment of conviction and sentence. He and three codefendants, Jamal Mitchell, Pele Brown and Al-Terique Walker, were charged by the grand jurors for Essex County in a twelve count indictment with crimes committed against Albert Hughes, Duane Harper and Yasim R. Welch. Tried to a jury, defendant was convicted of the following: conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); two counts of robbery in the first degree, contrary to N.J.S.A. 2C:15-1 (counts two and eight); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count four); attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count six); aggravated assault in the second degree, contrary to N.J.S.A. 2C:12-1b(1) (count seven); two counts of possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b (counts nine and eleven); and two counts of possession of a handgun with purpose of using it unlawfully, contrary to N.J.S.A. 2C:39-4a (counts ten and twelve).

On January 21, 2001, Duane Harper, Albert Hughes and Yasim Welch went to "Broker's Nightclub" in East Orange. They were friends. Hughes and Harper were also brothers. Defendant and his companions also went to Broker's that night. They arrived in a stolen, white, four-door Oldsmobile.

The members of the groups saw each other inside Broker's. Welch knew one of defendant's companions, Rudy Vine, from elementary school. Defendant and Harper spoke, some small talk as they admired one of the dancers.

Welch, Harper and Hughes stayed in the bar until closing. As they walked away, Welch was grabbed by one of defendant's group, who "put a gun up underneath [his] jacket and [said] 'You know what time it is.'" Welch understood this to mean he was being robbed. Harper swung at the man who accosted Welch, and defendant turned and shot him. Harper went down. There was more gunfire. When the shooting stopped, Albert Hughes was on the ground and Harper, screaming Albert's name, tried to help his brother. Harper saw defendant and his companions drive away in a white, four-door car.

Harper and Hughes were taken to the hospital. Harper underwent surgery to repair a rip in his small intestine caused by the bullet. Hughes had been shot in his arm, chest, back and abdomen. He died as a consequence of the resulting injuries.

Harper identified defendant's photograph from among those in a photo-array. Welch identified a photograph of Rudy Vine but did not select defendant's.

On January 30, 2001, a homicide investigator and a detective interviewed defendant. He was given a form that included the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), which he initialed. Defendant then gave a statement and signed each of its thirteen pages after it was typed in the investigator's presence.

In his statement, defendant explained that he had been told that Hughes had $3500 in cash. He and Pele Brown left the bar about one-half hour before closing to wait for him to leave. He told the officers about the stolen, four-door white Oldsmobile. He denied that he had done any of the shooting.

According to one officer, defendant's statement essentially broke the case. A gun found in Vines' home was matched with shell casings found at the scene, and the car was located.

Defendant subsequently denied that he had made or signed the statement. He testified that he was incarcerated elsewhere at the time and contested the signatures on the statement. Samples of his writing on cards that included his fingerprints and photograph were produced. Defendant denied that all but one of the signatures was his. A handwriting expert concluded that the signature on defendant's statement and the signatures on the cards produced by the State were written by the same person. Defendant stipulated that the fingerprints on the cards were his.

At trial defendant presented testimony relevant to establish an alibi. He admitted that he went to Broker's and spoke to Harper, but claimed that he left hours before closing because he wanted to see his daughter. Her mother, Hakeema Corum, testified that defendant arrived at about eleven o'clock, and she allowed him to wake their baby. Corum then went to sleep. When pressed, Corum admitted some uncertainty about the night of defendant's visit and gave inconsistent testimony about whether or not she had spoken to defendant since his arrest. According to defendant, he stayed the night in the child's room and left the following morning.

Defendant raises the following arguments on appeal.

I. THE JUDGE COMMITTED REVERSIBLE ERROR BY

FAILING TO PROVIDE THE JURY WITH THE MODEL CHARGE ON ALIBI IN THIS CASE WHERE ALIBI WAS THE ESSENCE OF THE DEFENSE. (NOT RAISED BELOW)

II. THE TRIAL COURT ERRED TO THE

DEFENDANT'S PREJUDICE IN ADMITTING THE FINGERPRINT CARDS, WHICH SUGGESTED THAT THE DEFENDANT WAS GUILTY OF PRIOR OFFENSES, WITHOUT PROVIDING A FULL AND ADEQUATE LIMITING INSTRUCTION.

III. THE CONVICTION MUST BE REVERSED BECAUSE

IT STANDS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW)

IV. THE STATEMENT THAT DEFENDANT ALLEGEDLY

MADE MUST BE SUPPRESSED BECAUSE IT WAS OBTAINED DURING A CUSTODIAL INTERROGATION AND WAS NOT ELECTRONICALLY RECORDED. (NOT RAISED BELOW)

V. THE SENTENCE IMPOSED ON COUNT SIX AND

THE 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.

A. THE SENTENCE FOR ATTEMPTED MURDER IS

EXCESSIVE.

 
B. THE CONSECUTIVE NATURE OF THE

SENTENCES MUST BE VACATED.

C. BLAKELY MANDATES VACATION OF THE

SENTENCES.

1. THE ABOVE-THE-PRESUMPTIVE TERM

ON COUNT SIX.

2. THE CONSECUTIVE NATURE OF THE

SENTENCE MUST BE VACATED.

I.

Our review of the record in light of the issues presented convinces us that the arguments related to defendant's convictions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add a brief explanation for our conclusion on each issue related to the conviction and address defendant's sentence in section II of this decision.

Although defendant did not request the instruction below, he argues that the trial court committed plain error by failing to give the jurors a specific instruction addressing his alibi evidence. Because there was no request or objection to the omission, we consider whether the omission was clearly capable of producing an unjust result. R. 2:10-2; State v. Chew, 150 N.J. 30, 82 (1997).

While "appropriate and proper jury charges are essential to a fair trial," we consider the charge "'as [a] whole to determine its overall effect'" in light of the objection raised. State v. Savage, 172 N.J. 374, 387 (2002) (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)). In this case, as in State v. Swint, 328 N.J. Super. 236, 256-57 (App. Div.), certif. denied, 165 N.J. 492 (2000), the judge gave a thorough and complete description of the State's obligation to prove beyond a reasonable doubt that defendant was the one who committed the crime. He explained:

The defendant has entered not guilty pleas to each of the charges. Mr. Terrell, as all defendants on trial, sits here presumed to be innocent and, unless each and every essential element of an offense charged is proved beyond a reasonable doubt, the defendant must be found not guilty of that charge.

. . . [T]hat burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his innocence or to offer any proof relating to his innocence.

. . . .

A reasonable doubt is an honest and reasonable uncertainty in your mind about the guilt of the defendant after you've given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. . . .

. . . .

. . . A defendant may be found not guilty by reason of direct evidence, circumstantial evidence, a combination of the [two], or a lack of evidence if it raises in your mind a reasonable doubt as to the defendant's guilt.

. . . .

The defendant, as part of his general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he's the person who committed the alleged offenses. The burden of proving the identity of the person who committed the crime is upon the State. For you to find this defendant guilty the State must prove beyond a reasonable doubt that this defendant is the person who committed the crimes. The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else or to prove the identity of that other person.

You must determine, therefore, not only whether the State has proved each and every element of an offense charged beyond a reasonable doubt but also whether the State has proven beyond a reasonable doubt that this defendant is the person who committed the offenses.

. . . .

. . . It's your function to determine whether or not the witnesses' identifications of the defendant are reliable and believable or whether [they are] based on a mistake or for any reason not worthy of belief.

The judge continued by providing guidance on evaluation of identification testimony focusing on relevant factors such as the witness' opportunity to observe, certainty and consistency or lack thereof.

In light of the complete instruction on the relevant principles, we cannot conclude that the jurors would have reached a different result if the judge had given a specific charge referencing defendant's claim that he was elsewhere. State v. Macon, 57 N.J. 325, 335 (1971). Indeed, the absence of an objection from the defense suggests that counsel viewed the charge as covering the essential issues. Swint, supra, 328 N.J. Super. at 257 (citing Wilbely, supra, 63 N.J. at 422).

Defendant's objection to admission of his fingerprint cards and the inadequacy of the limiting instruction relevant to those cards is not supported by the record. The evidence was relevant and essential to rebut defendant's denial of the signature that appeared on his statement, and the judge did not abuse his discretion in determining that the probative value was not substantially outweighed by the risk of undue prejudice. N.J.R.E. 404(a); State v. Morton, 155 N.J. 383, 453 (1998).

Moreover, the trial court's instruction clearly directed the jurors that defendant's fingerprint cards could not be considered as evidence that the defendant had committed prior crimes. At the time the cards were first employed, the judge directed the jurors:

Ladies and gentlemen of the jury, the cards that the prosecutor just used in connection with the questions that he asked the defendant are not being offered to show that the defendant has ever been charged with a crime. That he's ever been convicted of a crime. They have a very limited purpose and the limited purpose is use of the signature and the fingerprints on those cards and they can be used for no other purpose and you shouldn't infer anything else from the fact that they were used.

Fingerprint cards, those type[s] of things can be obtained in all sorts of things that have nothing to do with the criminal justice system. All right.

In his final charge to the jury the judge instructed:

There is in evidence in this case certain photographs and fingerprints that were used to identify or fingerprint cards that were used to identify the defendant. With reference to the photographs and the fingerprints submitted into evidence, you'll notice that the fingerprints and photographs appear to have been taken from a law enforcement agency. You're not to consider the fact that the agency obtained the photographs or fingerprints of the defendant as prejudicing him in any way. The fingerprints and photographs are not evidence that the defendant has ever been convicted of any crime.

There simply is no basis to conclude that the jurors did not heed these careful instructions or that a listing of reasons for fingerprinting unrelated to the criminal justice system would have done more to avoid the impermissible inference in the context of this case. See State v. Manley, 54 N.J. 259, 271 (1969); Model Jury Charge (Criminal), "Fingerprints" (revised (1/6/92). The defendant has not established entitlement to relief based on introduction of this evidence for the limited purpose of rebutting his disavowal of his incriminating statement.

Rule 2:10-1 bars consideration of defendant's claim that the jury verdict is against the weight of the evidence. That rule provides that "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1.

Defendant argues that the judge erred in declining to suppress his statement, sua sponte. This claim is based on the officers' failure to record the statement electronically. The argument ignores the Supreme Court's ruling in State v. Cook, 179 N.J. 533, 551-52 (2004). In that case, the Court rejected an identical claim, noting that absent specific guidelines requiring recording, admissibility of statements is to be assessed "under current standards for voluntariness and trustworthiness." Id. at 559-60. Guidelines established for future cases have no bearing here. See id. at 539.

II.

Defendant contends that his sentence for attempted murder is excessive and violative of his right to trial by jury and established limitations on consecutive sentences. We find no merit in those arguments. Nonetheless, as discussed below, errors in merger and ambiguity in the judge's decision on concurrent and consecutive sentences require remand.

The judge merged defendant's conviction for conspiracy to commit robbery (count one) into his conviction for armed robbery of Albert Hughes (count two). His convictions for possession of a firearm for an unlawful purpose (counts ten and twelve) were merged into his conviction for the felony murder of Albert Hughes (count four) and his conviction for the armed robbery of Yasim R. Welch (count eight).

The judge imposed the following sentences for the crimes defendant committed against Albert Hughes: armed robbery (count two), the maximum sentence, a twenty-year term, eighty-five percent of the term to be served without possibility of parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (as adopted by L. 1997, c. 117, 2); felony murder (count four), the minimum term, thirty years without possibility of parole, concurrent with the sentence on count two.

On defendant's convictions for crimes committed against Duane Harper, the judge sentenced defendant as follows: attempted murder (count six), a twenty-year term, consecutive to the thirty-year term on count four and concurrent with the twenty-year term on count two, which is concurrent with the thirty-year term), eighty-five percent of which must be served without possibility of parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (as adopted by L. 1997, c. 117, 2); aggravated assault by causing serious bodily injury (count seven), a term of ten years, five without possibility of parole, concurrent with the sentences on counts two, four and six.

On defendant's conviction for armed robbery of Yasim R. Welch (count eight), the judge sentenced defendant to a term of twenty years, ten without possibility of parole, to be served concurrently with the sentences imposed on counts two, six and seven. On defendant's convictions for possession of a firearm without a permit (counts nine and eleven), defendant was sentenced to two separate terms of five years, both concurrent with one another and with counts two, four, six, seven and eight. The court also imposed a $900 VCCB assessment, a $525 SNSF assessment and a $30 LEOTEF.

Additional mergers were required. It is well-settled that a conviction for the underlying felony merges into a conviction for felony murder. State v. Rodriguez, 97 N.J. 263, 375 (1984).

Accordingly, defendant's conviction for the armed robbery of Albert Hughes (count two) must be merged into his conviction for the felony murder of Albert Hughes (count four). Similarly, because defendant's shooting of Duane Harper was the basis for his convictions for both aggravated assault and attempted murder, the former conviction must merge into the latter. See State v. Gilliam, 224 N.J. Super. 759, 764 (App. Div. 1988). Thus, the conviction imposed on count seven must be merged into the conviction imposed on count six.

Although the required mergers do not have an impact on defendant's overall sentence, the merger of count two into count four raises a question about the trial judge's intention with respect to the consecutive sentences he imposed for felony murder and attempted murder. Specifically, the judge directed that defendant's sentence for felony murder of Hughes (count four) be served concurrently with his sentence for armed robbery of Hughes (count two). The judge then directed that defendant's sentence for attempted murder of Harper (count six) run concurrent with the armed robbery sentence on count two but consecutive to the felony murder sentence on count four. Because the sentence on count two is ten years less than the concurrent sentence on count four, the sentence on count six cannot be served concurrent with the shorter sentence and consecutive to the longer. It is apparent that the judge misspoke. But, we cannot determine whether the court intended an aggregate sentence of fifty years (count six consecutive to count two and four, which are concurrent) or forty years (count six consecutive to count two and concurrent with count four). In either event, remand for articulation of the court's intention is required by our direction to merge count two and count four.

We note, as we did in the case of his codefendant Brown, consecutive sentences are not inappropriate when a defendant murders or causes serious bodily injury to more than one victim. See State v. Carey, 168 N.J. 413, 427-30 (2001); State v. Serrone, 95 N.J. 23, 27-28 (1983); Brown, supra, slip op. at 30.

Defendant's claim that his sentence for attempted murder is based upon facts not established by the verdict of the jury and is, for that reason, violative of his constitutional right to a jury trial is without merit. The trial judge relied only upon defendant's record and facts established by the jury's verdict. See State v. Natale, 184 N.J. 458, 483-90 (2005).

He found:

You're [twenty-one] years old. Born in Newark. Graduated from high school. This is your second indictable conviction. [You] also have [three] juvenile adjudications.

[I have] reviewed the mitigating and aggravating factors. I don't find any mitigating factors. As aggravating factors I find that there is a definite risk that you would commit another offense if you were left in society. [I] also find there [is] a definite need to deter you and others from violating the law and understanding you can't walk around with guns robbing and shooting people.

All of these findings are based upon the verdicts and defendant's criminal history.

Moreover, we do not regard the sentence as manifestly excessive. We are satisfied that the trial court properly applied the standards and guidelines of the Code and based the sentence upon findings on the aggravating and mitigating factors that are both supported by the record and clearly explained. See State v. Carey, 168 N.J. 413, 427-30 (2001); State v. Yarbough, 100 N.J. 627, 643-45 (1985); State v. Hodge, 95 N.J. 369, 376 (1984); State v. Roth, 95 N.J. 334, 363 (1984); State v. Johnson, 203 N.J. Super. 127, 137 (App. Div.), certif. denied, 102 N.J. 312 (1985).

The conviction is affirmed. The matter is remanded for resentencing: to reflect required mergers and vacate associated fines and assessments, for reconsideration of consecutive and concurrent sentences, and to reflect defendant's acquittal on count three and the dismissal of count five.

 

Count five was dismissed prior to trial, and the jury acquitted defendant of murder contrary to N.J.S.A. 2C:11-3a(1)-(2) (count three). His codefendants were tried separately: Pele Brown was convicted of all charges and his conviction was affirmed, State v. Brown, A-2423-02T4 (Apr. 30, 2004), Al-Terique Walker was acquitted on all charges.

Defendant's sentence is addressed in part II of this decision.

One of the officers said a typewriter was used to prepare the statement and the other said it was done on a computer.

(continued)

(continued)

17

A-3850-03T4

November 30, 2005