STATE OF NEW JERSEY v. RONALD McGRAW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2250-04T42250-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD McGRAW,

Defendant-Appellant.

_____________________________

 

Submitted October 10, 2006 - Decided November 8, 2006

Before Judges Lintner, Seltzer

and C.L. Miniman.

On appeal from the Superior Court

of New Jersey, Law Division,

Passaic County, 02-07-0950.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M.

Gilson, Designated Counsel, of counsel

and on the brief).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent

(Christopher W. Hsieh, Senior

Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant appeals from his convictions, following a jury trial, on charges arising from a March 31, 2002, incident. He also appeals from the sentences imposed. Because we find no defect in the trial, we affirm the convictions but remand for re-sentencing on one of the charges in accordance with State v. Natale, 184 N.J. 458 (2005).

Defendant was convicted of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) (Count One); first-degree murder, N.J.S.A. 2C:11-3(a)(1) (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Four).

He was sentenced on May 6, 2004. The judge merged Counts One and Three into Count Two, and sentenced defendant to a fifty-year custodial term, subject to the eighty-five percent parole disqualifier mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent five-year custodial term on Count Four. Both sentences included appropriate fines, penalties and conditions.

On appeal, defendant, through counsel, advances the following arguments for our consideration:

POINT I

EVIDENCE IMPLICATING DEFENDANT WITH THE THREATENING AND THE INTIMIDATION OF THE STATE'S KEY WITNESS WAS UNDULY PREJUDICIAL

AND CONSTITUTES REVERSIBLE ERROR.

POINT II

THE TRIAL COURT'S FAILURE TO CHARGE THE JURY AS TO THE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER, MANSLAUGHTER, THIRD DEGREE AGGRAVATED ASSAULT AND CONSPIRACY TO COMMIT THIRD DEGREE AGGRAVATED ASSAULT

MANDATES THAT THE MURDER AND THE CONSPIRACY TO COMMIT MURDER CONVICTIONS BE REVERSED.

(Partially Raised Below)

POINT III

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

A. The Sentences Imposed Violate The Sixth And The Fourteenth Amendments Of The United States Constitution.

B. The Sentencing Court Erred By Recognizing An Inappropriate Aggravating Factor And By Failing To Recognize An Appropriate Mitigating Factor.

Defendant has also submitted a pro se brief in which he argues:

POINT I

DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO TRIAL BY JURY UNDER THE SIXTH AMENDMENT AND THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE TOGETHER WITH ARTICLE 1, PARAGRAPH 8, ARTICLE 1, PARAGRAPH 9, AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION BASED UPON N.E.R.A. WAS NOT SUBMITTED TO THE GRAND JURY AND NEITHER RETURNED IN THE INDICTMENT. THE DIRECTED GUILTY VERDICT RENDERED BY THE TRIAL JUDGE OF N.E.R.A. WITHOUT THE CASE GOING BEFORE THE JURY TO BE PROVEN BEYOND A REASONABLE DOUBT.

Because defendant does not challenge the sufficiency of the evidence to sustain the conviction, our discussion of the evidence may be somewhat truncated. The trial record reveals that in the early morning hours of March 31, 2002, Michael Carter was drinking at the Island Bar in Paterson when he was shot and killed. Shortly after the shooting, and immediately after the police had arrived, Jacquillet McGriff appeared at the door of the bar. She was upset, and her white T-shirt was blood-stained. She began screaming, "They killed my brother, they killed my brother."

Although McGriff initially indicated that she feared for her safety if she provided information, she nevertheless informed the police that she had been present at the bar because she was unable to sleep. She saw three individuals enter the bar, run up to Carter, and shoot him in the head. She described them as male, young, black, and wearing red rags on their faces, red jackets, and red caps. Once at the police station, she provided a written statement indicating that Carter was a member of the Bloods gang. She saw the assailants, all of whom had on red, later identified as a color worn by members of that gang, "pulling out the guns before they went through the door" and said that "all three of them had guns." McGriff ultimately identified a photograph of defendant, indicating that she was "a hundred percent sure" of the identification. The next day, she returned to the station in an unsuccessful attempt to identify the other individuals. Several days later, she again expressed concerns for her safety.

The police began to look for defendant and, on April 3, 2002, he reported to the Paterson police headquarters. He explained that, although he had been present, he neither planned, nor participated in, the shooting. He ultimately identified the other two individuals involved in the incident as Rashawn Cooks, also known as "Bleek," and George Jacobs, also known as "Bloody J." Defendant explained that all of those involved, including the victim, were members of the Bloods. Defendant told the police that he, Cooks, and Jacobs had planned to confront Carter because Carter had associated with a rival gang in violation of the rules of the Bloods. If that confrontation was unsuccessful, they planned to administer a "31-second beat down." This was a gang punishment that involved a physical beating for thirty-one seconds.

In his initial statement to police, defendant admitted knowing that Cooks had a gun, but denied knowing that Cooks "was going to shoot him." Nevertheless, as defendant first explained to the police, as soon as they entered the bar, Cooks drew his gun and shot Carter. Defendant also denied possessing a gun that night.

In the two years between the shooting and the trial, McGriff left her mother's home and, at one point, resided with Francois Thomas, also known as Francine Thomas, who was identified at trial as a high-ranking Bloods member. She also had a dating relationship with Samuel Sparks, who is also a Bloods member. At trial, McGriff did not respond forthrightly to direct examination, taking the position that she was unable to remember the details of the shooting. After a Gross hearing, her prior written statement was utilized as substantive evidence. The State then attempted to explain McGriff's professed inability to recall the incident by identifying her relationship with Thomas and Sparks, although she had denied that they were Bloods members or that her relationship with them affected her memory of the murder. Detective Anthony Hyatt, a member of the Gang Unit of the Paterson Police Department, testified that Samuel Sparks was the leader of a sect of the Bloods and introduced a picture showing defendant with Sparks.

Defendant testified. He explained to the jury that Carter had been selling drugs with a rival gang and that he, Cooks, and Jacobs intended to confront him. If unsuccessful, they intended to administer a "31-second beat down." Defendant claimed that when the three gang members entered the bar, he had no indication that Carter would be shot. Nevertheless, he testified that as they entered the bar, Jacobs and Cooks immediately pulled out handguns and shot Carter. This testimony was contrary to defendant's prior statement to the police that only Cooks shot the decedent.

The jury convicted defendant on all counts, and defendant does not, as we have noted, suggest that the evidence was insufficient to support the verdict. Instead, he asserts trial errors, which, he claims, mandate reversal. First, he challenges the admission of evidence of McGriff's relationship with high ranking Bloods members and her initial request for protection. He claims this evidence raised an inference that defendant, together with his fellow gang members, threatened McGriff, causing her to change her testimony. We do not understand defendant to claim this evidence was inadmissible, and we agree with the trial judge who found that the evidence bore on the credibility of McGriff's written statement and provided an explanation for her recantation. Without that evidence, the jury would have no context in which to evaluate McGriff's claim that she could not recall the incident of March 31, 2002, or to test the credibility of the written statement against the later claim of an inability to remember.

The trial judge rejected the claim that the evidence should have been excluded pursuant to N.J.R.E. 403 because its probative value was outweighed by its prejudicial effect. "In assessing the probative value and the risk of undue prejudice under N.J.R.E. 403, the trial court has discretion to make appropriate determinations and will be reversed only if the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Nelson, 173 N.J. 417, 470 (2002) (citations omitted) (internal quotations omitted); see State v. Sands, 76 N.J. 127, 144 (1978). The evidence did not, as defendant claims, specifically raise an inference that he had threatened McGriff. It did allow a permissible inference that her failure to testify resulted from her association with the Bloods, and we cannot say that the judge's evaluation here was a misuse of his discretion.

We add that we see very little probative value in the photograph of defendant and Sparks since defendant did not deny his affiliation with the Bloods and had, in fact, admitted it. On the other hand, given defendant's admission of membership, we see no prejudice. Accordingly, the admission of the photograph cannot have "been clearly capable of producing an unjust result

. . . ." R. 2:10-2. Its admission, even if in error, cannot form the basis for reversing the conviction.

Defendant next asserts that the judge should have charged lesser-included offenses and that the failure to do so requires reversal. We disagree. At the charge conference, the prosecutor requested that conspiracy to commit second-degree aggravated assault should be charged as a lesser-included offense of first-degree conspiracy to commit murder. The defense objected, but requested that, if the lesser-included charge was given, the court also charge conspiracy to commit third-degree aggravated assault. The judge, however, charged only conspiracy to commit second-degree aggravated assault as a lesser-included offense of the conspiracy to commit murder. Defendant objects to the failure to charge conspiracy to commit third-degree aggravated assault.

Conspiracy to commit murder, in the context of this trial, required proof that defendant's conspiracy was to (a) knowingly or purposefully cause Carter's death, or to (b) knowingly or purposefully cause serious bodily injury resulting in death, knowing "that the injury created a substantial risk of death and that it was highly probable that death would result." State v. Cruz, 163 N.J. 403, 418 (2000); N.J.S.A. 2C:11-3(a)(1) and (2).

Conspiracy to commit second-degree aggravated assault required proof of a conspiracy to inflict serious bodily injury without the knowledge that there would thereby be created a "substantial risk of death that was highly probable to occur

. . . ." Cruz, supra, 163 N.J. at 419. Conspiracy to commit third-degree aggravated assault would require proof of a conspiracy to inflict significant bodily injury. "Serious bodily injury," necessary for the second-degree crime, requires a "substantial risk of death or [injury] which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). "Significant bodily injury," necessary for the third-degree crime, refers to "a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1(d).

Second- and third-degree aggravated assaults are lesser-included offenses of murder. State v. Savage, 172 N.J. 374, 390 (2002). Lesser-included offenses must be presented to the jury so long as a rational basis exists in the evidence for an acquittal of the higher offense charged and a conviction of only the lesser-included offense. Id. at 397.

Although there was no testimony with respect to the amount of injury that might be expected from a "31-second beat down," the jury had a rational basis to acquit defendant of conspiracy to commit murder if they believed the conspiracy was simply to administer that punishment without expecting that death would result. A third-degree conviction would have been appropriate if the jury believed that only a temporary loss of function would be occasioned by that beat down. Accordingly, we conclude that the failure to charge conspiracy to commit third-degree aggravated assault was error.

Nevertheless, in the peculiar circumstances of this case, we find that error harmless. Jury instructions are "poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987) (citations omitted). In this case, however, the jury determined that defendant had conspired either to knowingly or purposefully cause death or to inflict serious bodily injury knowing that death was "highly probable" to result. It rejected the possibility that defendant conspired to inflict serious bodily injury without the knowledge that death was highly probable.

If the jury found defendant conspired to purposefully or knowingly cause death, it could not have determined that defendant conspired only to cause a temporary loss of bodily function; if the jury found defendant conspired to inflict serious bodily injury with the knowledge that death was highly probable, it could not have determined that defendant conspired only to cause a temporary loss of bodily function. Moreover, the jury rejected the lesser-included charge of conspiracy to commit second-degree aggravated assault; it could not, therefore, have accepted the even lesser crime of conspiracy to commit third-degree aggravated assault. Accordingly, the failure to charge that crime could not have altered the outcome.

See R. 2:10-2.

Defendant also argues that the court erred in failing to charge aggravated manslaughter, manslaughter, and third-degree aggravated assault as lesser-included offenses of murder. The judge charged only murder and second-degree aggravated assault. For the reasons that we have just discussed respecting the conspiracy counts, we conclude that the failure to include in the judge's charge the lesser-included offense of third-degree aggravated assault was harmless error.

Although defendant specifically requested that neither aggravated manslaughter nor manslaughter be charged, he now complains of the failure to charge each offense. Both crimes require "reckless" behavior. Aggravated manslaughter requires "recklessly [causing] death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). Manslaughter requires a criminal homicide "committed recklessly." N.J.S.A. 2C:11-4(b)(1). The element of recklessness requires a conscious disregard of a "substantial and unjustifiable risk that the material element [death] exists or will result from" defendant's conduct. N.J.S.A.

2C:2-2(b)(3). The judge indicated, initially, that he would charge those offenses, but defendant objected, arguing that "the elements of recklessness are not in this case . . . ." The judge ultimately accepted defendant's argument and, after assuring himself that defendant understood the issue, had discussed it with counsel, and concurred with his attorney that the offenses should not be charged, the judge agreed not to do so.

Because we agree with the trial judge that the evidence presented no basis on which to convict defendant of either charge, we do not deal with the State's claim that the failure to charge was induced by defendant. See State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974); State v. Pontery, 19 N.J. 457, 471 (1955); State v. Roscus, 16 N.J. 415, 427 (1954).

We are satisfied that no rational jury could have found the element of recklessness in this case. If the jury accepted, as they did, the State's presentation, there was no recklessness since defendant purposefully and knowingly committed the acts leading to Carter's death. Even on defendant's claim that he intended simply to administer a "beat down", there would be no basis for finding "reckless" behavior. The judge explained:

Mr. McGraw testified that he had no idea that anybody was going to kill Mr. Carter. That in fact he discussed with them, that's Jacobs and Cooks, the fact that they were going to talk to Mr. Carter, and if that didn't work out they were going to administer a 31 beatdown.

I have thought about this over the luncheon adjournment. I cannot find in any part of the testimony where there is any reasonable possibility that the jury could find recklessness in this case.

We agree with the judge's reasoning.

Defendant argues on appeal that since he knew that at least one of his confederates had a gun, a jury could find that he consciously disregarded the possibility that someone would shoot Carter, thus satisfying the definition of "reckless" behavior. No reasonable jury, however, on defendant's testimony could find that this possibility equated to a "substantial" risk that a shooting would occur. Accordingly, we find no basis to disturb defendant's conviction.

Defendant also asserts that the fifty-year custodial term imposed upon the murder conviction was excessive. We have reviewed defendant's arguments and find them without sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2). We add only that the sentencing judge was clearly within his discretion in determining that the gangland-style murder met the aggravating factor set out in N.J.S.A. 2C:44-1(a)(1) (nature and circumstance of the offense), especially given the reason for the murder, and in rejecting the mitigating factor set out in N.J.S.A. 2C:44-1(b)(12) (defendant's cooperation) since the identification of Cooks as one of the shooters was not so much cooperation as an attempt to deflect culpability. We have no basis to disturb the sentence imposed on the murder charge. See State v. Jarbath, 114 N.J. 394, 401 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

Defendant's pro se brief argues that the required minimum sentence pursuant to NERA violated his right to a jury trial. That argument is inapplicable to offenses committed, as was this one, after the June 29, 2001, effective date of the amendment to NERA that defined the specific crimes to which it was applicable. See State v. Petrucci, 365 N.J. Super 454, 457 n. 1 (App. Div.), certif. denied, 179 N.J. 373 (2004).

We are, nevertheless, constrained to reverse and remand for reconsideration of the sentence imposed on the third-degree crime of unlawful possession of a weapon. At the time of sentence, that offense carried a presumptive term of four years. Because the sentence was in excess of the now abandoned presumptive term, defendant is entitled to have the sentence re-evaluated. See Natale, supra. 184 N.J. at 494-5.

We affirm defendant's conviction and the sentence imposed on Count Two; we reverse and remand for reconsideration of the sentence imposed on Count Four.

Affirmed in part, and reversed and remanded in part.

 

In fact, Carter was McGriff's cousin but, because they had been raised in the same household and were very close, she referred to him as her brother.

State v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff'd 121 N.J. 1 (1990).

Generally, conspiracy is graded by the degree of the substantive crime that is the subject of the conspiracy. N.J.S.A. 2C:5-4(a).

The second-degree aggravated assault at issue here is criminalized at N.J.S.A. 2C:12-1(b)(1); the third-degree aggravated assault at issue here is criminalized at N.J.S.A. 2C:12-1(b)(7).

Cruz noted that in such cases the prosecution should ordinarily be for aggravated manslaughter or manslaughter. 163 N.J. at 419. Here the conspiracy charged was for aggravated assault. We do not take the language of Cruz to prohibit such prosecutions.

(continued)

(continued)

16

A-2250-04T4

November 8, 2006