STATE OF NEW JERSEY v. RAMEL WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4589-04T44589-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAMEL WALKER,

Defendant-Appellant.

_______________________________________

 

Submitted October 25, 2006 - Decided December 8, 2006

Before Judges Wefing, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-12-3860.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ramel Walker appeals from convictions and sentences arising out of the shootings of Antoine Gurley (Gurley), Obaseota Ibiang (Ibiang), William Peyton (Peyton), and Rahman Simmons (Simmons) in the City of Newark on July 14, 2003. For the reasons that follow, we affirm defendant's convictions and the sentences imposed on counts two through seven but remand for re-sentencing on count one.

I.

Defendant was charged with the murder of Gurley, N.J.S.A. 2C:11-3a(1) and (2) (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); attempted murder of Ibiang, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) (count four); attempted murder of Peyton, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) (count five); attempted murder of Simmons, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) (count six); and conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a(1) (count seven).

At trial, the State presented evidence that at about 10:00 p.m. on July 14, 2003, Officer Angel Vila (Vila) of the Newark Police Department (NPD) responded to the vicinity of 73 Valley Street in Newark. Vila saw Gurley lying face down in the street next to a parked vehicle. He was unconscious with several bullet wounds in his upper body. Simmons and Peyton were sitting on the porch about ten feet away and Ibiang was hiding in a garage in the rear of the premises. Simmons, Peyton, and Ibiang also had been shot. Simmons and Peyton told Vila that two men had walked down the street and opened fire. Simmons described the suspects as "two males with dark clothing and orange bandanas." Gurley later died as a result of the multiple wounds he sustained in the shooting.

Detective Joseph Hadley, Jr. (Hadley) of the NPD headed the investigation concerning this incident. Hadley testified that he went to the crime scene shortly after the shootings occurred. Hadley reviewed the scene and undertook a door-to-door canvass of the neighborhood to determine if there were any witnesses to the incident. Hadley went to the hospital where the victims had been taken. He attempted to speak with Ibiang but Ibiang refused to speak with him then or later. Hadley said that he did not want to get in the way of the doctors who were treating the victims so he left the hospital. Hadley returned to his office where he received an anonymous phone call. The call led Hadley to the residence of Mujadeen Nance (Nance). Hadley spoke with Nance and his girlfriend.

It appears that, several days earlier, on the evening of July 11, 2003, the police had received a report of an incident of domestic violence at the home of Latia Williams (Williams) in Newark. Officer Robert O'Connor (O'Connor) of the NPD investigated the incident. O'Connor testified that during the course of his investigation, he learned that Nance had pushed his way into Williams' home, pointed a gun at her, and pistol whipped her new boyfriend. O'Connor arrested Nance and charged him with aggravated assault, unlawful possession of a handgun, and possession of a handgun for an unlawful purpose.

Hadley testified that he received information that Gurley was present during the incident at Williams' home and defendant was the person who had been assaulted. After speaking with Nance and his girlfriend, Hadley went to speak with Natrika Samone Fears (Fears). On July 15, 2003, Fears gave a statement to the police.

Fears testified that she knew defendant, Nance, Gurley, and Williams. She stated that on July 14, 2003, Williams and Nance "were not in a good relationship." They were separating and at some point, Williams began to date defendant. Fears said that on July 14, 2003, at about 4:30 p.m., she had a conversation with defendant in downtown Newark. Defendant asked Fears if Nance was "locked up." Fears told him that she was not sure. Defendant told Fears that Nance had "disrespected" him by coming into the house and striking him with the gun. Defendant also told Fears that if he could not "get" Nance, he would "get to his friends."

Fears additionally testified that in the early morning hours of July 15, 2003, she received a call from her best friend Shanika who was at Nance's house. Shanika told Fears that the police were there and they were asking questions. Fears said that she had spoken to Shanika earlier and told her that she had seen defendant and spoken with him. The police later came to Fears' house and took her "downtown."

Fears was shown an array of photographs and she identified defendant as the person "who said he was going to kill [Nance] and his friends for coming to his house and pistol whipping him." In her statement to the police, Fears said that defendant told her that if he could not "get" Nance, he would go after each of his friends and "kill them one by one." Fears said that Gurley, Simmons, and Nance "hung around" together, and that Gurley and Simmons were members of a gang.

Peyton was the only victim who testified at trial. He was fifteen years old at the time of the shooting. Peyton said that on July 14, 2003, he was near his grandmother's home at 75 Valley Street with Simmons, Gurley, and Ibiang. They were talking about basketball when two individuals walked up the street and began shooting.

Peyton testified that he saw the face of the man who shot him. He was wearing a bandana on his head. Peyton said that he could not identify the other shooter because he was wearing a bandana over his face. Peyton stated that Gurley had been shot "point blank like in his chest." Peyton said that he saw the face of the person who shot Gurley. Peyton testified that it was the same person who shot him. Peyton positively identified defendant as the shooter whose face was not covered with the mask. He said that at the time of the shooting, he was at a close distance from defendant and there was sufficient light to enable him to see the shooter's face.

Peyton also testified that the day after the shooting, his mother Andrea Peyton (Andrea) was with him in the hospital when the police showed him an array of photographs. Peyton selected defendant's photograph from the array and said he was sure it was a photograph of the shooter.

On July 21, 2003, defendant was interviewed by Detective Vincent Vitiello (Vitiello) of the NPD concerning the domestic incident on July 11, 2003. Defendant told Vitiello he had been visiting Williams' apartment when an intruder entered. According to defendant, the intruder wanted Williams to go outside and "fight some chick." The intruder pointed a gun at defendant and told him to "sit right there." Defendant told Vitiello that the intruder struck him in the face with the gun. Defendant said that the perpetrator was Williams' ex-boyfriend and five or more persons were with him when he entered Williams' apartment.

Detective Michael Chirico (Chirico) of the NPD showed defendant certain photo arrays. Chirico testified that defendant picked out a photograph of Nance and said that it was the person who hit him in the face with a gun. Defendant also picked out Gurley's photo and said that he had been with the individual who struck him in the face with the gun.

Defendant was acquitted of Gurley's murder as charged in count one, but convicted of the lesser included offense of passion/provocation manslaughter. Defendant was acquitted of the attempted murders of Ibiang, Peyton, and Simmons, as charged in counts four, five and six, respectively, but found guilty of aggravated assault on each of these counts. Defendant was found guilty of conspiracy to commit murder. Defendant also was found guilty on the weapons offenses in counts two and three.

The judge imposed a ten-year term of imprisonment on count one, with an eight-year, six-month period of parole ineligibility. The judge imposed a four-year concurrent term on count two. The judge merged count three with counts four, five, six and seven. He imposed a concurrent seven-year term on count four, with a five-year, eleven-month, sixteen-day period of parole ineligibility. The judge sentenced defendant to concurrent seven-year terms on counts five, six, and seven, with five-year, eleven-month, sixteen-day periods of parole ineligibility. The judge also imposed three years of parole supervision on counts one, four, five, six, and seven. In addition, the judge imposed appropriate fines and assessments. This appeal followed.

Defendant raises the following contentions for our consideration:

I. THE STATE'S LINE OF QUESTIONING REGARDING THE CONDUCT OF DEFENDANT'S PRIOR ATTORNEY WAS VIOLATIVE OF DEFENDANT'S RIGHTS TO COUNSEL AND DUE PROCESS.

II. THE "DELIBERATE ANEW" INSTRUCTIONS WHEN A JUROR WAS SUBSTITUTED DURING DELIBERATIONS WERE ERRONEOUS AND CONTRADICTORY (Not raised below).

III. THE COURT SHOULD ORDER MERGER OF THE CONSPIRACY CONVICTION INTO THE PASSION/ PROVOCATION MANSLAUGHTER CONVICTION OR VACATE THE CONSPIRACY CONVICTION BASED ON INSUFFICIENT EVIDENCE (Not raised below).

IV. THE SENTENCE IMPOSED IS UNCONSTITUTIONAL AND EXCESSIVE.

II.

We first address defendant's contention that the judge erred by allowing the State to question Peyton and his mother regarding a phone call to them from defendant's prior counsel William Cucco (Cucco).

The following facts inform our decision on this issue. In his opening statement, defense counsel asserted that defendant's former attorney would testify that Peyton told him in a telephone call that the gunmen had bandanas over their faces up to their noses, thereby raising reasonable doubt about Peyton's identification of defendant as one of the shooters. Defense counsel additionally stated that defendant's former attorney would testify that Andrea also was on the phone call and she had described the circumstances of her son's identification.

During the trial, defense counsel sought a ruling limiting the State's examination of Peyton and Andrea regarding their conversations with Cucco. Defense counsel took the position that he should be permitted to have Cucco testify about what the Peytons said to him but the State should not be permitted to question the Peytons regarding what Cucco said to them. The judge rejected defendant's arguments and ruled that "everything that was said during that conversation should come out."

The State therefore elicited the following testimony from Andrea:

Q. What is it that Mr. Cucco said to you on the phone?

A. First[,] Mr. Cucco was asking [William Peyton] what was it exactly that he told you guys, and he was asking questions, and everything that he was telling him, he kept telling him that that's not what he was told, and -

THE COURT: Excuse me one second. When you say him and him, it's a little confusing as to who you're talking about.

THE WITNESS: Oh, okay.

THE COURT: Just use the words Mr. Cucco and your son so we know who's talking about who.

THE WITNESS: Mr. Cucco kept telling my son that that's not the information that he received, and he kept like trying to change what he was telling him.

Q. Well, how did he do that, try to change what he was telling him?

A. Okay. First my son told him that one of the guys had a bandana on his head and the other one had one on his face, and he says, well - he says, well, no, that's not the information that I got, I got that both had bandanas on their faces and one on their head and face, and, you know, so my son said that's not what I told you, I said one had a bandana on his head and the other one had it on his face.

* * *

Q. Did your son ever tell Mr. Cucco that both of the people had bandanas on their faces and he couldn't see them?

A. No.

Q. All right. Now, did your - did Mr. Cucco say anything about the police who were investigating this case?

A. He said the prosecutor was new and didn't know what she was talking about or doing anyway.

Q. Okay. And did he say anything about the police in the case?

A. That they wrote the information down wrong, they didn't take the right information, nobody is doing anything correctly.

Q. And what did you say in response to these things?

A. I told him I didn't want to speak to him anymore because he's trying to change everything around and he's not listening to anything that we was telling him, and I didn't want to speak to him anymore.

Andrea additionally testified that she believed Cucco was trying to trick her and put words in her mouth. She also said that she believed Cucco was trying to put words in her son's mouth.

The State also elicited testimony from Peyton that Cucco told him that he did not know what he was talking about and the prosecutor did not know what she was doing. Peyton was asked whether he recalled telling Cucco that both of the gunmen had bandanas over their faces and that he could not see them or their faces. Peyton's reply was "No."

Defendant argues that the questioning of these witnesses regarding their conversations with Cucco was "grossly improper." Defendant contends that the testimony cast aspersions on the actions of his former attorney and allowed the jury to infer that Peyton's identification was so solid that defendant's attorney had to "trick" Peyton and "put words in his mouth." Defendant says that the testimony also allowed the jurors to infer that Cucco's actions indicated consciousness of defendant's guilt. Defendant contends that these inferences "ran roughshod" over his right to counsel, due process and a fair trial. We disagree.

As we have pointed out, it was defendant's attorney who made the conversations between Cucco and the Peytons an issue by announcing to the jury in his opening statement that Cucco would testify that Peyton had made statements concerning his identification of the gunmen that contradicted his identification of defendant. Defense counsel also asserted that Cucco would testify that Andrea had discussed her son's identification thereby implying that Andrea had contradicted Peyton's identification. In light of these assertions, the judge properly allowed the State to present evidence from Peyton and his mother concerning Peyton's prior consistent statements in order to refute the charge that Peyton's identification of defendant was a fabrication. The testimony as to what Peyton said to Cucco was admissible under N.J.R.E. 607 and N.J.R.E. 803(a)(2).

Moreover, it was not improper for the State to elicit testimony from the Peytons as to what Cucco said to them because Peyton's prior consistent statements were in direct response to Cucco's questions. Cucco's questions provided the context for Peyton's prior consistent statements. The judge properly permitted the State to establish that Peyton's statements about the gunmen remained consistent despite Cucco's statements challenging his identification.

Furthermore, the State's questioning of the Peytons regarding what Cucco said to them in the phone call did not violate defendant's right to counsel. Communications between a lawyer and his client are privileged. N.J.R.E. 504. However, no protection is accorded to communications by an attorney with persons other than his client. See State v. Gosser, 50 N.J. 438, 448-49 (1967) (holding that admission of testimony that defendant made certain admissions to an attorney was proper because the attorney represented defendant's wife not defendant), cert. denied, 390 U.S. 1035, 88 S. Ct. 1434, 20 L. Ed. 2d 295 (1968).

In furtherance of his representation of defendant, it was proper for Cucco to interview Peyton and his mother. However, because the conversations were not privileged, the State could elicit testimony about what Cucco said to these witnesses because his statements were inextricably linked to and provided the context for Peyton's prior consistent statements regarding the gunmen.

Defendant also argues that the State's questioning of the Peytons about what Cucco said to them unfairly impugned counsel's integrity and imputed guilt to defendant. Again, we disagree. We emphasize that it was the defense that made Cucco's statements an issue in this case when defendant's trial counsel asserted that Cucco would testify that Peyton made inconsistent statements about his identification of the gunmen. By interviewing Peyton and his mother, and questioning them about Peyton's identification, Cucco opened the door to the admission of evidence at trial concerning not only the statements made by Peyton and his mother to Cucco, but also the statements made by Cucco to these witnesses.

III.

We next consider defendant's contention that the judge erred in his instructions to the jury after one juror was excused and an alternate juror substituted during deliberations.

Pursuant to R. 1:8-2(d)(1), substitution of an alternate juror during deliberations is permissible in certain circumstances, including a juror's inability to continue. However, "[w]hen such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate." The jury "must be instructed in clear and unequivocal terms that it is to begin its deliberations anew. . . ." State v. Miller, 76 N.J. 392, 407 (1978).

When the substitution occurred in this case, the trial judge informed the jurors that they would have to disregard all of the discussions that had taken place because they no longer had "any legal validity." The judge said that the jurors would have to start their deliberations from the beginning because the new juror needed to hear "everything that all of you know" before the juror could "become a participant" in the process. The jurors were additionally told that they would have to disregard "any impact" that the excused juror may have had on the deliberations. The judge instructed the jurors to return to the jury room, review the evidence again with the alternate juror "as if you're doing it for the first time" and disregard anything that the excused juror "may have said during the prior deliberations."

Defense counsel did not object to the judge's instructions. Defendant now argues that a new trial is required because the judge stated that the alternate juror "needs to hear everything that all of you know in terms - before she can become a participant in the process." We disagree.

As we have pointed out, in his instructions to the jury, the trial judge stated repeatedly that the jurors had to begin their deliberations anew. The jurors were instructed that they must start all over as though the jurors were "doing it for the first time." The jurors were told to disregard all of the discussions that had taken place. The judge's comment that the alternate juror "needs to hear everything that all of you know" must be read in context. Considering the instructions in their entirety, we are satisfied that the jurors had been "instructed in clear and unequivocal terms" that they must begin their "deliberations anew." Miller, supra, 76 N.J. at 407.

IV.

Defendant additionally argues that the evidence was insufficient to support the conviction for conspiracy. We disagree.

Defendant was charged in count seven with conspiring with an unnamed person to promote or facilitate the commission of murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a. To obtain a conviction on this charge, the State had to prove that defendant, with the purpose of promoting or facilitating the commission of the crime, agreed with another person or persons to engage in conduct that constitutes the crime, its attempt or solicitation, or agreed to aid in the planning or commission of the crime, its attempt or solicitation. N.J.S.A. 2C:5-2a(1) and (2).

When ruling on a motion for a judgment of acquittal, the judge must determine whether a reasonable jury could find defendant guilty of the charge beyond a reasonable doubt, giving the State the benefit of all its favorable testimony, as well as all favorable inferences that can be drawn from the evidence. State v. Reyes, 50 N.J. 454, 458-59 (1967). In light of this standard, we are satisfied that the judge correctly found that the State had presented sufficient evidence to support a conviction on count seven.

V.

Defendant argues contention that his conspiracy conviction merged with his conviction for passion/provocation manslaughter. Again, we disagree.

A defendant may not be convicted of more than one offense if one offense consists only of a conspiracy or other form of preparation to commit the other offense. N.J.S.A. 2C:1-8a(2). A conspiracy will merge with a completed substantive offense when that crime was the single goal of the conspiracy. State v. Hardison, 99 N.J. 379, 386 (1985). However, when the conspiracy had criminal objectives that were not charged as substantive offenses, the conspiracy will not merge but will survive as a conspiracy to commit those remaining crimes. Id. at 386-87.

In this case, the State presented evidence that defendant and an accomplice shot Gurley, Peyton, Simmons, and Ibiang on July 14, 2003. Defendant was charged with Gurley's murder and the attempted murder of the other three victims. However, the State presented sufficient evidence upon which a jury could reasonably infer that the conspiracy had a broader objective than the charged offenses. The jurors reasonably could infer that defendant and his accomplice had not merely agreed to murder Nance's friends but also shared the objective of obtaining revenge upon Nance for the incident at Williams' apartment. Accordingly, the conspiracy count does not merge.

VI.

Defendant next argues that his sentences are excessive. We are satisfied that there is adequate support in the record for the judge's findings of aggravating factors under N.J.S.A. 2C:44-1a(1) (nature and circumstances of the offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and seriousness of offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law).

We also are satisfied that the judge properly found no mitigating factors in this matter. In this regard, we reject defendant's contention that the judge erred in failing to find a mitigating factor pursuant to N.J.S.A. 2C:44-1(b)(3 (defendant acted under a strong provocation). In any event, even had the judge found provocation as a mitigating factor, that single mitigating factor was clearly outweighed by the aggravating factors.

Defendant additionally argues that the judge erred by imposing a consecutive sentence on count four. However, we are convinced that the imposition of the consecutive sentence reflected an appropriate weighing of the factors enumerated 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).

We therefore are satisfied that the sentences on counts two through seven are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

However, we agree with defendant that he is entitled to re-sentencing on count one under State v. Natale, 184 N.J. 458 (2005), because that sentence exceeds the presumptive term for passion/provocation manslaughter. See also State v. Thomas, 188 N.J. 137, 152-54 (2006).

In addition, as the State notes in its brief, the judgment of conviction erroneously designates the conviction as an adjudication by guilty plea and erroneously lists the final charges in counts four, five, and six as attempted murder rather than aggravated assault. Furthermore, the judgment should state that defendant's conviction on count one was for passion/provocation manslaughter, not murder.

Accordingly, we affirm defendant's convictions and the sentences imposed on counts two through seven. We reverse the conviction on count one and remand for re-sentencing pursuant to State v. Natale, supra, 184 N.J. at 495-96. We also remand for correction of the judgment of conviction.

Affirmed in part, reversed in part and remanded for further proceedings in conformity with this opinion.

 

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December 8, 2006