STATE OF NEW JERSEY v. JAMES BLACK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2798-03T42798-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BLACK,

Defendant-Appellant.

_________________________________________________

 

Submitted December 20, 2005 - Decided March 13, 2006

Before Judges Skillman, Axelrad and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, 95-04-0964.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson,

Designated Counsel and on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Russell J. Curley, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant James Black raped his former girlfriend at knifepoint on January 15, 1995 and murdered her on February 20, 1995. He was indicted for crimes arising out of the two incidents, which were tried together, and he was convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (count one); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count two); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d (count four); murder, N.J.S.A. 2C:11-3a(1) and (2) (count five); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4d (count six); and third-degree unlawful possession of a weapon, N.J.S.A. 3C:39-5b (count seven). Defendant has appealed his convictions. He also appeals consecutive sentences of life in prison with thirty years' parole ineligibility for murder, fifteen years for rape, four years for terroristic threats, and four years for unlawful possession of a firearm.

On appeal, defendant raises the following arguments through counsel:

POINT I

EVIDENCE AS TO DEFENDANT'S PRIOR ASSAULTS OF THE VICTIM WAS UNDULY PREJUDICIAL AND CONSTITUTE[D] REVERSIBLE ERROR.

POINT II

DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THE TERRORISTIC THREATS CHARGE SHOULD HAVE BEEN GRANTED.

POINT III

DEFENDANT'S SENTENCE WAS EXCESSIVE AND THEREFORE MUST BE VACATED.

A. The Lower Court Erred By Imposing Consecutive Terms.

B. The Life Imprisonment Sentence Violated the Sixth and Fourteenth Amendments To The United States Constitution.

C. The Lower Court Erred By Recognizing N.J.S.A. 2C:44-1a(3) As An Aggravating Factor.

Defendant has additionally filed a pro se brief, in which he argues:

POINT ONE

THE FAILURE OF THE TRIAL COURT TO GIVE A LIMITING INSTRUCTION ON HOW TO DEAL WITH THE OTHER-CRIMES EVIDENCE CONCERNING THE ASSAULT AT THE HAIR SALON DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED.

POINT TWO

THE FAILURE OF TRIAL COUNSEL AT A HEARING ON A MOTION FOR SEVERANCE AND A 404(b) HEARING TO UTILIZE A STATEMENT FROM THE VICTIM IN WHICH SHE MOVED TO HAVE THE SEXUAL ASSAULT CHARGES DISMISSED DEPRIVED THE DEFENDANT OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL THAT IS GUARANTEED BY THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION THEREFORE THE CONVICTION SHOULD BE REVERSED.

We affirm.

Evidence produced at trial disclosed that defendant and the victim, Georgia Mills, lived together in an apartment in Atlantic City with their daughter until September 1994, when their six-year relationship ended and defendant was ordered by Mills to leave. To prevent defendant's return, Mills took defendant's apartment key, and later changed the apartment's locks. Nonetheless, defendant continued to seek contact with Mills.

Shortly before Christmas 1994 defendant, having learned that Mills had not returned to her apartment on the prior night, accosted her at a hair salon and slammed her head against a wall with force sufficient to create a hole. Although the event was not witnessed, persons who came to Mills's aid immediately after the assault found her crying and holding her head and observed the consequent damage to the wall. In trial testimony, defendant denied that the incident arose from jealousy, claimed that he was merely concerned as the result of Mills's absence for her wellbeing, and asserted that he had damaged the wall himself with his fist.

On January 15, 1995, defendant returned to Mills's apartment in a jealous rage, cut Mills's clothes off with a knife, and raped her at knifepoint. The rape was witnessed by Mills's sister, Ann Marie, who also lived in the apartment with her two children. Ann Marie called the police. They were met upon their arrival at the apartment by Mills, hysterical, clad only in a torn bra, and exhibiting a large knot on her forehead and a bruise on her left cheek. She stated to the police that she had been beaten by defendant, and she confirmed the rape. Defendant, who had remained seated quietly in a chair in the bedroom, was arrested after a scuffle and, while being escorted from the scene, stated in Jamaican dialect: "I can't believe she's doing this to me, getting me locked up like this. When I get out of here, I'm going to kill her and her sister." He repeated the threat to a witness, Annette Reid, while being escorted through the apartment's lobby, stating in dialect: "See what your friends did to me. I'm going to kill her." Defendant also repeated the death threat to a police officer while being booked. The police later found a knife on the headboard of Mills's bed and discovered that the telephone line in the bedroom had been severed. Following his arrest, defendant gave a signed statement in which he admitted that he had become jealous after observing Mills kiss another man and that he had engaged in an altercation with Mills, cutting off her clothes, but he claimed that intercourse had been consensual.

Evidence also disclosed that, after defendant's release from jail, he had gone to Mills's place of employment, Trump Plaza, and had asked for Derrick Alford, the person with whom Mills was having a relationship. A few days later, on the evening of February 20, 1995, Mills was repeatedly shot as she left work. The shooting was witnessed, and defendant was identified as the perpetrator by Trump Plaza employees. In a later phone call to Mills's sister Ann Marie, defendant stated when asked why he had killed Mills: "I love her and if I can't have her, nobody can." At trial, defendant denied that he was Mills's murderer.

Defendant fled to Jamaica after learning of Mills's death, but was apprehended on August 24, 2000.

I.

Defendant argues on appeal that the court improperly permitted the introduction of evidence of defendant's prior assaults upon Mills in violation of N.J.R.E. 404(b), and that the court's ruling constituted reversible error.

At a pretrial hearing, the State had proffered the December 1994 and January 1995 assaults by defendant upon Mills as other-crimes evidence demonstrating defendant's jealousy as a motive for the murder. The State also argued that defendant's threats after his arrest provided evidence of his intent to kill Mills. The claimed admissibility of the rape evidence under N.J.R.E. 404(b) was also utilized by the State as a basis for its argument against severance of the January 15 and February 20 charges.

Following the conclusion of counsel's arguments, the court reviewed the factors set forth in State v. Cofield, 127 N.J. 328, 338 (1992), and permitted the evidence of both incidents to be introduced, determining that the other crime evidence was material to the issues of motive, intent and identity, which were in dispute because the murder had been denied by defendant; that the crimes were reasonably similar in nature to the murder, since they both involved assaults; that they were reasonably proximate in time, as they constituted portions of a continuum of assaultive conduct, escalating in violence, that extended from December to February; and that the probative value of the evidence as displaying defendant's jealousy and vindictiveness outweighed its prejudicial nature. The court stated:

As to the probative value being outweighed by prejudicial value, I think based on what I have just said that the probative value is palpable, it's extreme frankly and certainly it has a prejudicial value for the jury to have heard that he has done awful things such as the sexual assault, if they find that to be true, certainly it will have a prejudicial impact, but, it also goes in my view much further in proving the State's case especially given the fact of identity defense or denial defense when without something of this kind the jury might well be left to deciding this based on eyewitness testimony as to the actual events itself, always a difficult proposition for the State and for a jury to base their decision upon. So I think that the probative value is extreme and not outweighed by the prejudicial value.

The court also found that the evidence of the rape appeared to be clear and convincing. It deferred consideration of the weight of the evidence with respect to the assault in the hair salon until trial. Finally, the court found that because the evidence would properly be admitted in the murder trial, the underlying substantive offenses of sexual assault and terroristic threats were properly joined with the murder charges for trial purposes.

Defendant argues that the hair salon evidence was improperly admitted because it demonstrated only defendant's propensity for violence, and thus was inadmissible pursuant to N.J.R.E. 404(b). See State v. Covell, 157 N.J. 554, 563 (1999) (precluding admission of other crimes evidence for the sole purpose of demonstrating the defendant's criminal disposition). We disagree. We find sufficient evidence in the record to support the State's claim that the assault upon Mills in the hair salon was occasioned by defendant's anger at being thrown out of Mills's apartment and his jealous reaction to Mills's conduct once his relationship with her had ended. We therefore find the evidence relevant to defendant's motive and intent to eventually commit murder. See State v. Ramseur, 106 N.J. 123, 266-67 (1987) (permitting introduction of evidence of arguments or violence between a defendant and homicide victim to show defendant's state of mind), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993); State v. Townsend, 374 N.J. Super. 25, 42-43 (App. Div.), certif. granted, 183 N.J. 218-19 (2005); State v. Baluch, 341 N.J. Super. 141, 192 (App. Div.), certif. denied, 170 N.J. 89 (2001).

We further find no abuse of discretion in the court's conclusion that the probative value of the testimony regarding the two assaults as evidence of defendant's state of mind outweighed the prejudicial impact of that testimony. See Ramseur, supra, 106 N.J. at 266 (finding scope of review narrow and deferential, and adopting abuse of discretion standard). Defendant denied the commission of the murder. Evidence of his state of mind and his intent was thus of particular importance to the establishment of his guilt. See State v. Long, 173 N.J. 138, 162 (2002) (holding that evidence of a defendant's prior assaults on a victim is so highly probative of his intent and state of mind that it is seldom excluded because of undue prejudice); Townsend, supra, 374 N.J. Super. at 42.

We also find no plain error in the court's instruction to the jury regarding the limited relevance of the evidence of the assault in the hair salon. Although the court initially instructed the jury only with respect to the assault, rape and threats occurring on January 15, 1995, following a reminder by counsel that the hair salon incident had been omitted from the other crimes instruction, the judge proceeded to provide a full charge with respect to that incident. In doing so, the judge described the incident and specifically stated that evidence concerning it could not be used to demonstrate that defendant was a bad person or that he had a propensity to commit crimes. The judge then appropriately instructed the jury that it could consider the assault only as evidence of defendant's "vindictiveness, retribution, intent and perhaps the formulation of a plan." As such, the instruction comported with the requirements of such decisions as State v. Marrero, 148 N.J. 469, 495 (1997), Cofield, supra, 127 N.J. at 340-41, and State v. Stevens, 115 N.J. 289, 304 (1989). No error occurred.

II.

We find no merit to defendant's argument that the court erred in failing at the conclusion of the State's case to dismiss the charge that defendant had uttered terroristic threats after being arrested following the rape on January 15, 1995. The governing statute, N.J.S.A. 2C:12-3(b), requires proof that defendant threatened to kill Mills with a purpose to put her "in imminent fear of death under circumstances reasonably causing [her] to believe the immediacy of the threat and the likelihood that it will be carried out." Defendant claims that proof of an "imminent" fear of death was lacking, since defendant was then in custody and was held for some period thereafter, rendering him incapable of executing his threat until his release.

Viewing the evidence in its entirety and giving the State the benefit of all favorable testimony and inferences that could reasonably be drawn from it, we conclude that a reasonable jury could find defendant guilty of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). That defendant's threat was of future action in this context is not material, since it was uttered under circumstances that were sufficient to cause a reasonable person in Mills's position to fear that death would eventuate. State v. Nolan, 205 N.J. Super. 1, 4 (App. Div. 1985); see also State v. Smith, 262 N.J. Super. 487, 417-18 (App. Div.), certif. denied, 134 N.J. 476 (1993). As the statutory language makes clear, it is the fear that must be imminent, not the death itself.

III.

In an additional challenge to his conviction, defendant claims in his pro se supplemental brief that his counsel was ineffective because he failed to introduce a signed statement by Mills in which she stated that she wished to drop charges arising from the January 15, 1995 rape. We decline to address this claim on direct appeal, since it involves allegations and evidence that lie outside the trial record. State v. Allah, 170 N.J. 269, 285 (2002), State v. Preciose, 129 N.J. 451, 460 (1992). Defendant may raise the matter in a petition for post-conviction relief.

IV.

As a final matter, we find no error under principles established 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) in the court's imposition of consecutive sentences for the crimes of aggravated sexual assault, terroristic threats, unlawful possession of a firearm, and murder. As the court found, the crimes were predominately independent of each other. The rape and murder, in particular, involved different acts of violence, and they were separated in time from each other.

Defendant observes that the rape and the terroristic threats occurred in sequence on the same day. However, we find that fact does not mandate the imposition of concurrent sentences. The crimes were vastly different, since one involved a physical assault, whereas the other did not. They occurred in different contexts, since the rape occurred following defendant's observation of Mills with another man, and the threats occurred on three different occasions after the rape was complete, the police had been summoned, and defendant (found calmly sitting in the bedroom) had been arrested and taken into custody. Additionally, the crimes arose from different motives, since the rape was the result of jealousy and the threats were a seeming reaction by defendant to the fact that Mills had called the police and to his arrest.

We likewise find no error in the imposition of a consecutive sentence on defendant's conviction for unlawful weapons possession. Although defendant used his firearm to commit the murder of Mills, the crime of unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5b for which defendant was charged and sentenced arose from different circumstances. It has long been established that an offense involving possession of a firearm without a permit is entirely separate from any substantive offense arising from the use of that firearm. State v. Deluca, 325 N.J. Super. 376, 392 (App. Div. 1999), aff'd as mod. on other grounds, 168 N.J. 626 (2001). The crimes thus do not merge. Ibid. It would be anomalous, given this precedent, to preclude merger but to require concurrency in sentencing.

We likewise find no violation of the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) in the court's imposition of a life sentence upon defendant as the result of his conviction for murder. See State v. Abdullah, 184 N.J. 497, 508 (2005). As the Supreme Court held there, New Jersey's

sentencing scheme for murder is almost identical to the example of an indeterminate sentencing scheme depicted with approval in Blakely . . . . Under such a system, a judge may "rule on those facts he deems important to the exercise of his sentencing discretion" within the statutory range.

[Ibid. (quoting Blakely, supra, 542 U.S. at 309, 124 S. Ct. at 2540, 159 L. Ed. 2d at 417).]

In this circumstance, a sentence of life imprisonment is "not in derogation of [defendant's] Sixth Amendment jury trial right." Ibid.; see also State v. King, 372 N.J. Super. 227, 242-44 (App. Div. 2004) (holding that in the absence of a presumptive term, the court may consider aggravating factors not found by the jury in imposing a sentence), certif. denied, 185 N.J. 266 (2005). None of the other sentences imposed upon defendant exceeded the presumptive term, and thus no concerns under Blakely arise.

Affirmed.

 

We find clear and convincing evidence of the hair salon incident to have been supplied by the testimony of Mills's hairdresser, Marcia Clark, who testified to what she heard during the assault and in its aftermath, to what she observed of Mill's condition after the assault had occurred and to what she saw the wall's condition to have been after the assault.

Also, a limiting instruction by the court at the time of the introduction of the evidence would have been preferable. However, we do not find plain error in the court's failure to do so. State v. Angoy, 329 N.J. Super. 79, 89 (App. Div.), certif. denied, 165 N.J. 138 (2000).

(continued)

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A-2798-03T4

March 13, 2006