STATE OF NEW JERSEY v. WILLIE A. PETERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1930-03T41930-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE A. PETERSON,

Defendant-Appellant.

_______________________________

 

Submitted January 31, 2006 - Decided March 6, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of

of New Jersey, Law Division, Essex

County, Docket No. 02-08-3082-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven J.

Gilson, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Maura K.

Tully, Deputy Attorney General, of

counsel and on the brief).

Appellant filed a pro se supplemental

brief.

PER CURIAM

After arguing about money, defendant Willie Peterson stabbed his girlfriend, Deborah Belle, several times in her face, with one of the wounds penetrating the brain through her left eye. Defendant now appeals from his convictions for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser-included offense of murder; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, as a lesser-included offense of robbery; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). Defendant also challenges his: aggregate sentence of sixty-five years imprisonment, which was comprised of an extended sixty-year term of incarceration for the aggravated manslaughter, pursuant to N.J.S.A. 2C:43-7.1(b)(2), and subject to a no early release (NERA) period, N.J.S.A. 2C:43-7.2, for the first thirty years; consecutive five-year prison term for theft; and concurrent five-year term for the unlawful purpose weapon possession.

Defendant, through counsel and pro se, advances several claimed errors, which allegedly occurred in the jury trial conducted by Judge Giles. Defendant claims error in the prosecutor's summation, the trial court's evidence decisions and jury instructions, the assistance trial counsel provided defendant, and the sentence imposed by Judge Giles. After reviewing each of these arguments in light of the record and the pertinent law, we have concluded that they are all without merit, except for part of defendant's argument pertaining to his sentence. R. 2:11-3(e)(2). Consequently, we affirm defendant's conviction and sixty-year sentence, but pursuant to State v. Natale, 184 N.J. 458, 484 (2005), we remand for resentencing on the theft and unlawful possession convictions. We discuss only those appeal points that require some explanation.

Defendant argues that his conviction should be reversed because the prosecutor's summation improperly commented on defendant's failure to testify and violated his right against self-incrimination. In his pro se supplemental brief, defendant also argues that the same comments impermissibly accused defendant of "tailoring" his version of events based on the evidence at trial.

In his summation, defense counsel argued that defendant had acted in self-defense. He urged a scenario in which Belle had become furious when she came home to discover pawn tickets on her table, began drinking to the point of intoxication, and then attacked defendant with an ornamental serrated knife when he returned to the apartment. Counsel noted that defendant had shown his wounds to a fellow inmate and explained they were inflicted by Belle during the fight. Counsel asserted that defendant turned himself in because defendant "couldn't live with" what he had done.

In response, the prosecutor argued that Belle "was ambushed." She continued, "[i]t wasn't self-defense. The first time you heard self-defense, Ladies and Gentleman, was today, and you've heard no evidence of it from the witness stand."

Defendant objected and moved for a mistrial. The trial court denied the application because it concluded that "the comment [did] not point to the defendant or the defendant's election not to testify in this trial." Following this colloquy, the court contradicted the prosecutor and instructed the jury that it had found that "there was a basis to instruct you on the law of self-defense." The prosecutor thereafter made no further reference to the lack of evidence on self-defense, but argued that defendant "wasn't acting in self-defense. He had lost control of her. And she paid the ultimate price."

It is well accepted that because defendants have a constitutional right to remain silent, no inference can be drawn against any defendant for exercising that right. State v. Deatore, 70 N.J. 100, 115 (1976). New Jersey's Constitution constrains a prosecutor's use at trial of a defendant's silence "when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J. 551, 569 (2005) (quoting Deatore, supra, 70 N.J. at 108-09).

Had the prosecutor told the jury that when defendant surrendered and described the murder he did not claim self-defense, there would have been a constitutional violation. However, the prosecutor did not make this argument. Instead, the prosecutor referred only to the lack of evidence "from the witness stand." She made no reference to the testimony of any particular witness. The broad nature of her statement could have applied equally to the lack of forensic or expert evidence supporting defendant's claim. Therefore, the comment did not violate defendant's right to self-incrimination.

In his supplemental brief, defendant argues that this same remark by the prosecutor also was improper because it accused him of "tailoring" his version of events based on the evidence adduced at trial. Tailoring accusations subvert the defendant's right to be present at trial and to confront any adverse witnesses. A prosecutor may not, therefore, refer explicitly to a defendant's presence and opportunity to tailor testimony. State v. Daniels, 182 N.J. 80, 98-99 (2004).

The tailored testimony concept, however, is not applicable here. Defendant did not testify, and the prosecutor never accused him of tailoring any testimony. Instead, her argument focused exclusively on defendant's failure to present any evidence supporting the self-defense theory. Consequently, we find no constitutional violation based upon the prosecutor's argument.

Defendant also argues the trial court erred when it admitted testimony from a neighbor regarding Belle's angry visit to the neighbor's apartment after Belle discovered that defendant had stolen from her and how the neighbor assisted Belle in finding a locksmith to change her door locks.

A trial court is afforded considerable latitude in deciding to admit or exclude evidence, and its decision will be reversed only if it constitutes an abuse of that discretion. State v. Feaster, 156 N.J. 1, 82 (1998). Here, the court was correct in admitting this evidence under the present sense impression exception to the hearsay rule. N.J.R.E. 803(c)(1).

There was sufficient evidence in the record to support an inference that Belle came to her friend's apartment immediately after she returned home and discovered the thefts. Belle was aware of her friend's work schedule and was "upset," and "screaming" that she had discovered missing jewelry and money. Both the timing and Belle's excited, emotional state support the inference that she returned home from work, discovered the thefts, and immediately went to her friend's apartment for solace. A similar explanation justifies the admissibility of the testimony regarding Belle's discovery of pawn receipts on her table.

Defendant's pro se argument that this evidence was irrelevant and prejudicial also lacks merit. The evidence was relevant to the State's theory of defendant's motive for the murder, which was that he killed Belle when she threatened to throw him out and cut off his "gravy train." The prejudice from the friend's testimony was minimal because the State presented additional evidence of defendant's thefts, including the pawn tickets and testimony from the pawn broker himself.

Defendant also argues that the court erred in admitting Belle's letter to defendant explaining that she did not want to live with him any longer and revealing prior threats to the victim by defendant. Defendant contends that the letter was inadmissible hearsay because Belle's state of mind was not at issue in that "there was no showing that Debbie Belle feared defendant." He contends that the admission "was not harmless, as the alleged motive and/or intent by defendant illustrated by . . . her letter to defendant . . . significantly diminished defendant's self-defense claim."

Hearsay evidence of a victim's state of mind or fear of a defendant is not admissible to prove a defendant's motive or state of mind. State v. Marshall, 123 N.J. 1, 113 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); State v. Machado, 111 N.J. 480, 486 (1988). However, as an exception to that rule, the victim's statements of fear generally are admissible when the defendant claims he or she acted in self-defense. State v. Benedetto, 120 N.J. 250, 257 (1990).

That was precisely the claim in this case. Defendant did not dispute that he had killed Belle. Instead, he portrayed Belle as the aggressor who attacked him with the ornamental knife when he arrived home, which prompted him to strike back in self-defense. Belle's expressions in the letter that described defendant as abusive, although not physically, therefore, would be relevant to disputing the picture of Belle as the aggressor.

In addition, in this case the letter was admissible "as background to establish the nature of the relationship between the victim and the defendant." Machado, supra, 111 N.J. at 489. The victim's statements in the letter set the context for defendant's threatening letter in response and create "a mosaic of the criminal event," for the jury's understanding. State v. Baldwin, 47 N.J. 379, 394, cert. denied, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966).

Defendant further argues that the trial court erred when it admitted evidence of threatening letters defendant wrote to Belle. Defendant contends the probative value of the "profanity-laced letters," written at least five months before the murder, did not outweigh their "significant prejudicial impact."

Evidence of prior threats by a defendant towards a victim is admissible under N.J.R.E. 404(b) to prove intent as well as motive. State v. Ramseur, 106 N.J. 123, 266 n. 60 (1987). Here also, we cannot say that the trial court erred in admitting this evidence. See State v. DiFrisco, 137 N.J. 434, 496 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Cofield, 127 N.J. 328, 338-39 (1992). In our view, the negative picture that the letters painted of defendant paled in comparison to the extensive testimony regarding the bloody and brutal nature of Belle's murder. Any prejudice generated by the letters did not outweigh their probative value.

At trial, the State presented evidence from a fellow inmate that, while in jail, defendant confessed that he had murdered his wife and that he had stabbed her to death in an argument over money. Defendant later clarified to the inmate that the victim was his fiancé, and that she had put up a struggle when he physically fought with her "and that's when the stabbing occurred." As pointed out by defendant in his pro se supplemental brief, the trial judge did not specifically instruct the jury that the inmate's testimony should be evaluated in light of any hope or expectation of benefit the inmate might have in connection with his own conviction and pending sentencing.

The judge did instruct the jury that in evaluating the credibility of witnesses they should consider whether "the witness [has] an interest in the outcome of the case" and whether the witness has "some bias or prejudice for or against one side or another." The judge also specifically told the jury that the inmate who testified "has previously been convicted of crimes" and that this evidence may be used to determine the witnesses' believability.

Because defendant never requested such a charge, the plain error review standard applies. R. 1:7-5. The inmate himself told the jury of the existence of his conviction, his hopes of favorable treatment, and that his sentencing was postponed pending his testimony at trial. Furthermore, the inmate's testimony supported defendant's contention that he did not intend to murder or rob Belle, but that the killing occurred during a "physical fight" that started over money. The inmate offered no testimony that specifically contradicted defendant's claim of self-defense. Assuming some prejudice to defendant from the testimony, we have no doubt that any error in the credibility charge was certainly harmless.

Also in his supplemental brief, defendant argues that he is entitled to a new trial because he received ineffective assistance of counsel. Defendant claims his counsel "was ill prepared to properly defend his client's rights as a direct result of his conflicts and his subsequent failure to properly and adequately prepare for trial." Defendant's "conflicts" charge is supported only with vague references to a relationship between trial counsel and the county prosecutor, to a pro se law suit that defendant brought against counsel, and to defendant's attempts to obtain different counsel because he believed that counsel was improperly preparing and investigating the case. Defendant supports his inadequate preparation claim by asserting that counsel's failings caused an inability to effectively cross-examine and discredit the State's witnesses who gave "misleading responses to questions where the answer greatly prejudiced the defendant and restricted his ability to properly present a defense."

Based upon the conclusory allegations of ineffective trial preparation, we can glean neither specific support for the claimed deficient performance nor "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Chew, 179 N.J. 186, 203-04 (2004). In addition, based upon this record we cannot determine whether any conflict of consequence existed between defendant and his trial counsel. Therefore, we reject the ineffectiveness argument without prejudice to defendant's right to reargue the issue in any application seeking post-conviction relief he may choose to file. See State v. Preciose, 129 N.J. 451, 459-64 (1992).

Defendant further argues that his sentence was excessive and must be vacated because Judge Giles recognized an inappropriate aggravating factor, imposed an unjustified consecutive term, and otherwise violated defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution.

Defendant's conviction for aggravated manslaughter pursuant to N.J.S.A. 2C:11-4(a), made him eligible for extended term sentencing under N.J.S.A. 2C:43-7.1. Defendant had a November 16, 1979, conviction for "robbery by force;" a July 12, 1985, conviction for second-degree robbery; and a January 5, 1993, conviction for first-degree attempted murder. The extended term for manslaughter is "a specific term of years which shall be between 30 years and life imprisonment[.]" N.J.S.A. 2C:43-7(a)(1). Defendant conceded applicability of NERA.

Contrary to defendant's contention, the court did not err by finding aggravating factor N.J.S.A. 2C:44-1(a)(1), "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[.]" Defendant stabbed Belle in the face multiple times in a battle that left several rooms of her home covered in blood and in disarray. She then was dumped in her bathtub to decompose for several weeks before she was found. This was an especially cruel and depraved murder.

As was made clear 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), "there can be no free crimes in a system for which the punishment shall fit the crime[.]" If defendant's killing of Belle was an act committed recklessly, rather than with the purpose of obtaining her money or jewelry, then at some point defendant formed a separate objective to steal those items. The jury acquitted defendant of felony murder and may have concluded that Belle already was dead when defendant decided to take the items and so the violence was not connected to the theft. Under that scenario, there were two distinct crimes, even though they occurred in close proximity and against the same victim. Thus, the trial court did not err in sentencing defendant to consecutive terms.

Finally, pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), defendant argues that his entire sentence must be vacated because the court employed aggravating factors other than his prior convictions in sentencing him to higher than presumptive terms. Defendant is correct that the court utilized a factor other than his prior convictions to impose sentence. However, defendant wrongly asserts that he is entitled to a remand because first-degree aggravated manslaughter carries a presumptive term of twenty years. The ordinary presumptive sentence for aggravated manslaughter is twenty years, N.J.S.A. 2C:44-1f(1)(a), however, the extended term presumptive sentence is life imprisonment, N.J.S.A. 2C:44-1f(1). Because defendant's sixty-year sentence was below the extended term presumptive sentence, he is not entitled to a remand for resentencing on that charge.

However, defendant's five-year sentences for third-degree theft and third-degree weapons possession both were above the four-year presumptive term for third degree crimes, N.J.S.A. 2C:44-1f(1)(d), and must be remanded for a new sentencing hearing.

In conclusion, defendant's conviction and sentence for aggravated manslaughter is affirmed. Defendant's sentences for third-degree theft and for weapons possession are remanded for a new sentencing hearing pursuant to Natale, supra, 184 N.J. at 484.

 

The sentencing judge merged the fourth-degree unlawful possession of the knife into defendant's third-degree conviction for possessing the knife for an unlawful purpose.

Defendant's counsel's appeal points are as follows:

POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE PROSECUTOR'S REMARKS IN SUMMATION TO THE JURY, REGARDING DEFENDANT'S NOT HAVING PRESENTED A SELF-DEFENSE THEORY PRIOR TO JURY SUMMATIONS, VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION.

POINT II: THE ADMISSION OF INADMISSIBLE HEARSAY, WHICH ARGUABLY PROVIDED DEFENDANT'S ALLEGED MOTIVE AND/OR INTENT, VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION AND CONSTITUTES REVERSIBLE ERROR.

POINT III: THE ADMISSION OF DEFENDANT'S "BAD CONDUCT" LETTERS TO THE VICTIM WAS UNDULY PREJUDICIAL AND CONSTITUTES REVERSIBLE ERROR.

POINT IV: THE TRIAL COURT'S INSTRUCTION TO THE JURY THAT IT COULD INFER THAT DEFENDANT ATTEMPTED SUICIDE, INDICATING PROOF OF CONSCIOUSNESS O[F] GUILT, WAS UNSUPPORTED BY REASONABLE INFERENCES AND CONSTITUTES REVERSIBLE ERROR.

POINT V: THE AGGREGATE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED (Not Raised Below).

POINT VI: DEFENDANT'S SENTENCE WAS EXCESSIVE AND MUST BE VACATED. (Not Raised Below).

A. The Trial Court Recognized An Inappropriate Aggravating Factor.

B. The Trial Court Erred By Imposing A Consecutive Term.

C. The Trial Court Violated The Sixth and Fourteenth Amendments To The United States Constitution.

Defendant's pro se appeal points are as follows:

POINT I: THE TRIAL COURT ERRED IN FAILING TO APPOINT OUTSIDE COUNSEL IN LIGHT OF DEFENSE COUNSEL'S CONFLICT OF INTEREST.

(A) TRIAL COUNSEL'S FAILURE TO ADEQUATELY PREPARE AND EXERCISE NORMAL CUSTOMARY SKILLS IN ESTABLISHING DEFENDANT'S INNOCENCE, AND THE LACK OF ADEQUATE CLIENT CONSULTATION [BY] COUNSEL[] RESULTED IN GROSS IGNORANCE OF DEFENDANT'S SPECIFIC INSTRUCTIONS FOR DEFENSE TACTICS, SO UNDERMINED THE PROPER FUNCTION OF THE ADVERSARIAL PROCESS THAT THE TRIAL CANNOT BE RELIED ON AS HAVING PRODUCED A JUST RESULT; IN VIOLATION OF DEFENDANT'S RIGHT TO A FUNDAMENTALLY FAIR TRIAL WITH EFFECTIVE REPRESENTATION. U.S.C.A. CONST. AMEND. 5, 6, & 14; N.J. CONST. ART. I, PAR. 10.

(B) THE TRIAL COURT ERRED IN NOT SUBSTITUTING A DIFFERENT ASSIGNED TRIAL COUNSEL TO REPLACE TRIAL COUNSEL ASSIGNED TO REPRESENT HIM.

POINT II: THE COURT ABUSED ITS DISCRETION IN ADMITTING EVIDENCE OF DISCORD IN THE RELATIONSHIP BECAUSE THE PROBATIVE VALUE OF THE EVIDENCE WAS SUBSTANTIALLY OUTWEIGHED BY THE PREJUDICE.

POINT III: DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE PROSECUTOR'S REMARKS IN SUMMATION TO THE JURY, REGARDING DEFENDANT'S NOT HAVING PRESENTED A SELF-DEFENSE THEORY PRIOR TO JURY SUMMATIONS, VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION. (Supplemental To Counsel's Point I).

POINT IV: THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS REGARDING THE EFFECT OF A WITNESS' ACTUAL OR PERCEIVED EXPECTATION OF FAVORABLE TREATMENT BY THE STATE DEPRIVED DEFENDANT [O]F HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. I, 10 AND 12 (Not Raised Below).

POINT V: THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERROR VIOLATED THE COMMON LAW OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION. (Not Raised Below).

(continued)

(continued)

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A-1930-03T4

March 6, 2006