STATE OF NEW JERSEY v. WAYMON CHESTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6761-03T46761-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYMON CHESTER,

Defendant-Appellant.

_________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

No. 01-10-4261.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated

Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Kenneth P. Ply, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

This is one of three appeals by defendant Waymon Chester that were calendared before us back-to-back. In this appeal, defendant appeals from a judgment of conviction following return of a jury verdict finding him guilty of second-degree conspiracy, N.J.S.A. 2C:5-2; three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of criminal restraint, N.J.S.A. 2C:13-2, a crime of the third degree; two counts of terroristic threats, N.J.S.A. 2C:12-3b, a crime of the third degree; three counts of possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, a crime of the second degree; three counts of aggravated sexual assault, N.J.S.A. 2C:14-2a(3), a crime of the first degree; and one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5b, a crime of the third degree. The trial court sentenced defendant on these convictions on the same day on which it imposed sentence upon defendant for the convictions which are the subject of appeal in A-6646-02T4 and A-6760-03T4. After merger, defendant's total aggregate sentence was sixty-five years in prison, with a forty-two year period of parole ineligibility.

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.

Defendant's convictions that are the subject of this appeal revolve around an incident which occurred in the late afternoon of May 14, 2001. Lenzy Hall owned a health food store at 55 Halsey Street in Newark. His daughter Toshia worked at an office nearby. Shortly after 5:00 p.m. on May 14, Toshia left work and stopped to visit with her father at his store. The two were chatting in the back room of the store when two men entered. Toshia occasionally helped her father at the store and told him that she would assist the men, whom she took to be customers. She approached and asked if she could help them. They said they were seeking a product called "Quick Flush" that they said they understood would be helpful in removing signs of marijuana use from one's system. Hall then came from the rear of the store. One of the two, later identified as Lamar Lee, then pulled a gun, pointed it at Hall and ordered him to open the register. Hall complied, and Lee took the money from the register. Lee then ordered Hall and Toshia to return to the back room. Lee took the money that was in Hall's wallet as well as the keys to the store; he used those keys to lock the front door. His accomplice, later identified as defendant, demanded Toshia's jewelry and pocketbook, which she surrendered.

Lee directed Hall to lie face down on the floor and piled shelves and other objects on top of Hall so that he could not get up. The two men then proceeded to repeatedly rape Toshia while her father was helpless on the floor.

The two men only stopped their brutal assaults upon Toshia when they heard a knock at the shop's front door. They ordered Toshia to get dressed and lie down on the floor next to her father. Lee went to the door and unlocked it; Michelle Bey Russell, a friend of both Hall's and Toshia's, entered the store. Lee, at gunpoint, forced her into the back room. The two men took her jewelry and ordered her onto the floor as well. They then fled.

Donald Sowell, who worked at a nearby Chinese restaurant, happened to see two men run from the health food store and get into a dark-colored BMW that was parked nearby. Sowell noted that as they were running toward the car, they were pulling off items of clothing and that one of the men was carrying a gun. Sowell entered Hall's store and heard Toshia screaming. He ran back outside to get the license plate of the BMW as it pulled away.

When the police responded to the scene, Sowell provided the license plate number that he had memorized. A check of that number revealed that the vehicle had been carjacked earlier that day in Bloomfield. Two days later, the car was discovered abandoned in Newark. Defendant's fingerprints were found on the car.

When defendant was apprehended, after being advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), he provided a statement in which he admitted being present at the store. He said he did not know that Lee had a gun and that he had been high on marijuana. In his statement, he admitted engaging in the sexual assault upon Toshia but said he had only done so because Lee had ordered him at gunpoint to participate and that he was afraid to refuse.

The indictment returned against defendant included not only counts relating to what had occurred in Lenzy Hall's shop but also the earlier carjacking of the BMW. In light of the horrific details of the attacks upon Toshia, the trial court severed for trial the counts dealing with the carjacking. Defendant's conviction in that separate proceeding is the subject of A-6760-03T4.

Defendant makes the following contentions on appeal.

POINT I: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT OTHER CRIME TESTIMONY RELATING TO A CARJACKING PURSUANT TO EVIDENCE RULE 404(b).

POINT II: THE TRIAL COURT ERRED BY FAILING TO PROVIDE LIMITING INSTRUCTIONS TO THE JURY REGARDING THE TESTIMONY RELATING TO THE CARJACKING WHICH WAS ADMITTED PURSUANT TO EVIDENCE RULE 404(b). (NOT RAISED BELOW)

POINT III: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF IRRELEVANT AND PREJUDICIAL TESTIMONY ELICITED BY THE STATE CONNECTING THE DEFENDANT WITH THE USE OF DRUGS. (NOT RAISED BELOW)

POINT IV: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S FAILURE TO ISSUE AN APPROPRIATE LIMITING INSTRUCTION TO THE JURY REGARDING THE TESTIMONY ELICITED BY THE STATE ASSOCIATING THE DEFENDANT WITH THE USE OF DRUGS. (NOT RAISED BELOW)

POINT V: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT. (NOT RAISED BELOW)

POINT VI: THE JURY'S VERDICT FINDING THAT THE DEFENDANT QUALIFIED FOR THE NO EARLY RELEASE ACT IN COUNTS X, XI AND XII WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW)

POINT VII: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT VIII: THE 20 YEAR TERMS IMPOSED ON COUNTS III, VII, X, XI, XII AND XIV ARE UNCONSTITUTIONAL SINCE THEY EXCEED THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.

I

Having reviewed the trial transcript, we can perceive no reversible error in the manner in which the trial court handled references to the carjacking, which had occurred earlier that day. It is undoubtedly correct that trial courts must be acutely sensitive to the unfair prejudice which may accrue against a defendant upon a jury learning that a defendant has been engaged in other criminal conduct. The admissibility of evidence of such other wrongdoing is governed by N.J.R.E. 404(b) and the four-prong test enunciated by the Supreme Court in State v. Cofield, 127 N.J. 328 (1992).

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Id. at 338 (citation omitted).]

Further, when the trial court does determine that such evidence should be admitted, it is called upon to give clear limiting instructions to lessen the possibility of unfair prejudice.

[B]ecause the inherently prejudicial nature of such evidence casts doubt on a jury's ability to follow even the most precise limiting instruction . . . the court's instruction should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.

[Id. at 340-41 (citations omitted).]

The trial court determined in a pre-trial motion that evidence relating to the carjacking could be presented in this trial because, in the view of the trial court, the carjacking was part of the res gestae and also bore upon the question of identity. We question the analysis of the trial court in this regard. Defendant's identity was not really at issue in this proceeding; defendant had provided a statement admitting to his presence and participation. In that statement, he asserted that he did not know his companion was armed with a gun and that he only participated in the sexual assaults because he was made to do so. Nor do we perceive that the carjacking incident, which occurred some time earlier in the day and in an entirely different municipality, falls within the res gestae of this brutal robbery and assault.

We are satisfied, nonetheless, after reviewing the transcript of defendant's trial, that the well-settled principles governing the admissibility and use at trial of evidence of other crimes that we have set forth above do not mandate a reversal of defendant's convictions.

In the course of his opening statement, the assistant prosecutor made no mention of the allegation of a carjacking. More importantly, the State, in the presentation of its case, made no mention of the details of the carjacking incident. The entirety of the testimony presented by the State on its case with regard to the carjacking consisted of no more than that of the investigating officers who related to the jury their discovery, upon running the license plate number of the BMW after it was recovered, that the vehicle had been reported carjacked. No details were provided as to the manner in which the car had been taken, and no testimony linking defendant to that carjacking was put forth by the State.

Defendant, who did not testify, presented only one witness, a police officer who had been involved in investigating the carjacking. The purpose of that testimony was to put before the jury that the owners of the car had originally identified someone other than defendant as having been involved in the carjacking.

We recognize that the assistant prosecutor did make certain comments in summation linking defendant to this carjacking. We cannot disregard, however, that defense counsel raised the issue in his own closing remarks, and, thus, the prosecutor was entitled to respond. There is no contention before us, moreover, that the prosecutor's summation was improper or excessive in the manner in which he handled the subject or, indeed, any other portion of his summation.

There was no request that the trial court include a limiting instruction in terms of the references to carjacking, and defendant's assertion on appeal of error by the trial court in this regard must be analyzed to determine whether the omission constitutes plain error. Plain error has been defined as "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed 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). The plain error standard requires more than a mere possibility of an unjust result. The possibility must be "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).

Given the overwhelming nature of the evidence presented against defendant, we can perceive no plain error in the failure to do so. R. 2:10-2. Our conviction in this regard is only strengthened by defense counsel's strategy of cross-examining one of the officers involved in investigating the carjacking to demonstrate to the jury that the victims of that crime originally identified someone else as the perpetrator.

II

Defendant makes a similar contention with regard to the testimony presented during the trial with regard to defendant's alleged drug use. He contends that it should have been excluded under N.J.R.E. 404(b), and further, at the very least, a limiting instruction should have been given. As with defendant's prior arguments, he makes this contention for the first time on appeal. R. 2:10-2.

Here, we are satisfied no limiting instruction was required under N.J.R.E. 404(b) because the references to marijuana use by defendant, both in the statement he provided to the police and as recounted by the Halls when he initially entered the store in search of Quick Flush, do constitute res gestae evidence. When evidence of other wrongdoing is part of the total criminal conduct that occurred, it may be considered within the res gestae of the subject crime; N.J.R.E. 404(b) does not apply and no limiting instruction is required. State v. Martini, 131 N.J. 176, 242 (1993); State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995).

III

We also reject defendant's next contention, again raised as plain error, that testimony to the effect that defendant's fingerprints, taken from the abandoned BMW, were matched through the State's Automated Fingerprint Identification System, deprived him of his right to a fair trial. Defendant's assertion that such testimony was improper because it inferentially connected him with prior criminal conduct has been rejected. State v. Dancyger, 29 N.J. 76, 91, cert. denied, 360 U.S. 903, 79 S. Ct. 1286, 3 L. Ed. 2d 1255 (1959) (noting, "[t]here are any number of reasons other than the conviction of a crime why the police may come into possession of a person's finger prints").

IV

At the time of this assault, N.J.S.A. 2C:43-7.2 ("No Early Release Act" or "NERA"), applied to a conviction for a first- or second-degree violent crime. The statute defined a violent crime as:

[a]ny crime in which the actor causes death, causes serious bodily injury . . . or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.

Defendant contends that he was not subject to a NERA sentence because there was no proof of physical force beyond that involved in the act of penetration itself. State v. Thomas, 166 N.J. 560, 563 (2001). Defendant's argument overlooks not only the brutal nature of the assaults that occurred but also the presence of the gun brandished by Lee. A NERA parole disqualifier was entirely warranted.

V

The balance of defendant's arguments revolve around the sentence imposed by the trial court. We reject out of hand defendant's assertion that his sentence was manifestly excessive and find no fault with the manner in which the trial court handled the various consecutive and concurrent aspects of defendant's overall sentence. Further, we perceive no necessity for an extended discussion of the principles guiding appellate review of a trial court's discretionary determination of an appropriate sentence term. We summarized those principles in State v. Zadoyan, 290 N.J. Super. 280 (App. Div. 1996).

We begin with the by-now-familiar admonitions that in reviewing a sentence, an appellate court should not substitute its judgment for that of the lower court, and that a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion. Eg., State v. Roth, 95 N.J. 334, 362-65 (1984), and the authorities cited therein. In Roth, we summarized as follows the criteria to be used on appeal to determine whether the sentencing court abused its discretion: an appellate court should

(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether even though the court sentenced in accordance with the guidelines, nevertheless application of those guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience. [Id. at 364-65.]

We cautioned further that "[w]hat we seek by our review is not a difference in judgment, but only a judgment that reasonable people may not reasonably make on the basis of the evidence presented," and that "[w]hen conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and [relevant case law], they need fear no second guessing." Id. at 365; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (a sentence within the statutory guidelines "may strike us as a harsh sentence, but that is a consequence of the legislative scheme and not a clear error of judgment by the trial court").

[Zadoyan, supra, 290 N.J. Super. at 288 (citation omitted).]

We are satisfied, nonetheless, that we are compelled to remand this matter to the trial court for resentencing in light of the principles enunciated in 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). The trial court, in imposing sentence upon this defendant, relied upon certain aggravating factors that had not been submitted to the jury for its factual determination. That is not permissible under Blakely and Natale. We express no views on the quantum of an appropriate sentence for this defendant in such a posture but leave that resolution to the sound discretion of the trial court.

Defendant's convictions are affirmed. The matter is

 

remanded for resentencing.

(continued)

(continued)

14

A-6761-03T4

October 27, 2005