STATE OF NEW JERSEY v. KEVIN JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4926-03T44926-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN W. JOHNSON,

Defendant-Appellant.

______________________________________________________

 

Submitted January 9, 2006 - Decided January 17, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 03-04-0832 and 03-02-0294.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Johanna Barba Jones, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Kevin Johnson (defendant) has appealed the judgment of conviction entered in this matter regarding certain events that occurred in Asbury Park on December 21, 2002.

The jury heard evidence that Nicholas Barone (Barone) attended a party at an Asbury Park club with Chaz Morgan (Morgan) and others on that evening. Eventually, Barone, his girlfriend and also his cousin left the party and returned to Barone's apartment. Before leaving, Barone's cousin invited Morgan to Barone's apartment. Morgan, along with defendant, who had not been at the party, later arrived at Barone's apartment in a green Ford Taurus. Soon thereafter defendant and Morgan, while sitting in the Taurus, observed Barone standing on the sidewalk.

Barone testified that defendant and Morgan, wearing masks, then pushed him up the stairs into his apartment and demanded money and his safe. Morgan disputed this, testifying that he discussed moving the safe with Barone and that Barone invited them into the apartment. Defendant did not testify. Once inside, according to Barone, he and Morgan began to "tussle." Barone's dog (Notorious) attacked defendant, who pulled a gun and shot the dog.

Testimony also revealed that defendant and Morgan left the apartment with the safe. They departed in the Taurus which defendant drove. A police officer responding to reports of a robbery in progress at Barone's apartment observed the Taurus driving at a high rate of speed, and attempted to cause it to stop. Instead of pulling over, defendant made an evasive right turn, and then drove through two stop signs and a red light. Defendant and Morgan later exited the vehicle and ran in separate directions.

Three other officers in an unmarked car observed two men flee from the Taurus, and joined the chase. Defendant attempted to climb a fence but got caught, fell onto the street and dropped his gun. When recovered by one of the officers, it was determined that the handgun contained three live rounds and two spent rounds.

Both defendant and Morgan were eventually apprehended. According to the police, they both resisted arrest.

As a result of his participation in those events, defendant was charged with second-degree conspiracy to commit armed robbery and armed burglary, N.J.S.A. 2C:5-2, and N.J.S.A. 2C:18-2; first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b); fourth-degree possession of a prohibited weapon or device (hollow point bullets), N.J.S.A. 2C:39-3(f); two counts of second-degree possession of a weapon for an unlawful purpose 2C:39-4; fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b); third-degree terroristic threats, N.J.S.A. 2C:12-3; second-degree eluding, N.J.S.A. 2C:29-2(b), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a).

As mentioned above, the charges against defendant and Morgan were presented to a jury during a single trial, which Judge Paul F. Chaiet presided over on October 8, 9, 15, 16, and 17, 2003. At the conclusion of the State's case the judge dismissed the third-degree terroristic threat charge against defendant. Defendant was found guilty of second-degree conspiracy, first-degree robbery, second-degree burglary, one of the two counts of second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon, fourth-degree possession of a prohibited weapon, second-degree eluding, and third-degree resisting arrest.

On Indictment No. 03-02-0294, defendant was charged with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a). On November 18, 2003, defendant entered a plea of guilty to this charge.

Defendant was sentenced on December 12, 2003. Judge Chaiet merged the convictions for conspiracy and possession of a weapon for an unlawful purpose into the robbery and burglary convictions. He imposed a seventeen-year term of imprisonment for the first-degree robbery conviction, which was made subject to the eighty-five (85%) period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed (1) a ten-year term of imprisonment, subject to NERA, on the burglary conviction; (2) a five-year term of imprisonment for the unlawful possession of a weapon conviction; (3) an eighteen-month term of imprisonment for possessing a prohibited weapon; (4) a ten-year term of imprisonment for eluding; and (5) a five-year term of imprisonment for resisting arrest. The judge ordered that all these terms be served concurrently. For the convictions on Indictment No. 03-02-0294, the judge imposed a three-year term of imprisonment to run concurrent to the terms of imprisonment imposed in Indictment No. 03-04-0832.

Defendant appealed, raising the following arguments for our consideration:

I. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY ADMITTING THE OUT-OF-COURT "ADOPTIVE ADMIS-SIONS" OF THE DEFENDANT.

A. THE TOTALITY OF THE CIRCUMSTANCES IN WHICH THE STATEMENTS WERE MADE WERE TOO UNRELIABLE TO QUALIFY AS ADOPTIVE ADMISSIONS UNDER N.J.R.E. 803(B)(2).

B. EVEN IF RELEVANT, THE EVIDENCE SHOULD HAVE BEEN EXCLUDED BECAUSE ITS PROBATIVE VALUE WAS SUBSTAN-TIALLY OUTWEIGHED BY ITS PREJUDICE.

II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE PHOTOGRAPHS OF THE DOG'S INJURIES INTO EVIDENCE.

III. THE PROSECUTOR PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY IMPROPERLY OFFERING HIS PERSONAL OPINION THAT THE DEFENDANT WAS "THE ENFORCER."

IV. THE AGGREGATE SENTENCE OF SEVENTEEN (17) YEARS WITH THE NERA PERIOD OF PAROLE INELIG-IBILITY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

A. THE SEVENTEEN (17) YEAR BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON COUNT TWO AND THE CONCURRENT TEN (10) YEAR BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE BURGLARY ON COUNT THREE, FIVE (5) YEAR BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVIC-TION FOR THIRD DEGREE UNLAWFUL P9OSSESSION OF A WEAPON ON COUNT FIVE, EIGHTEEN (18) MONTH BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FOURTH DEGREE POSSES-SION OF A PROHIBITED WEAPON ON COUNT SIX, TEN (10) YEAR BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVIC-TION FOR SECOND DEGREE ELUDING ON COUNT TEN, AND FIVE (5) YEAR BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR THIRD DEGREE RESIS-TING ARREST ON COUNT ELEVEN, WERE MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION BECAUSE THEY EXCEEDED THE PRESUMPTIVE SENTENCES FOR CRIMES OF THE FIRST, SECOND, THIRD, AND FOURTH DEGREES.

B. THE SENTENCES IMPOSED ON COUNTS TWO, THREE, FIVE, SIX, TEN, AND ELEVEN, WERE ILLEGAL BECAUSE THEY EXCEEDED THE MAXIMUM SENTENCES AUTHORIZED BY THE JURY'S VERDICTS.

After carefully reviewing the record, we find that the arguments contained in Points II and III are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also find no merit in the arguments contained in Points I and IV for the following reasons.

At trial, along with evidence regarding the events of December 21, 2002, the State offered evidence of what it claimed were attempts by defendant to influence the content of Barone's testimony or to entice him into refusing to testify. In Point I, defendant argues that a letter and postcard, both of which contained statements urging Barone not to testify or cooperate with the prosecution, as well as the oral statements which Barone attributed to defendant during his testimony, were inadmissible or, if admissible, should nevertheless have been excluded because of their prejudicial effect. We reject these contentions.

A party's own statement, N.J.R.E. 803(b)(1), or a statement whose content the party has adopted "by word or conduct or in whose truth the party has manifested belief," N.J.R.E. 803(b)(2), are not statements that are barred by the hearsay rule. Here, the written documents in question, as well as Barone's testimony that defendant spoke with him about the contents of the letter and postcard, provided a sufficient foundation for Judge Chaiet's determination that these statements were admissible in the case against defendant pursuant to N.J.R.E. 803(b)(1).

Specifically, by way of the postcard, the State argued that defendant urged Barone not to testify. There was also testimony that after receiving the postcard, Barone, while incarcerated and awaiting trial on unrelated charges, encountered defendant in the Monmouth County Correctional Institution. Defendant asked whether Barone received his message and whether he planned on testifying. Barone said he had not decided.

The judge also admitted into evidence a two-page letter purportedly sent by defendant to Barone which suggested that Barone's bail would be paid if he did not cooperate with the State. In the letter, defendant urged Barone to testify that on December 21, 2002 they argued about money, and that Barone had commanded Notorious to attack defendant. Barone testified that after he received the letter he again encountered defendant in the jail. Defendant asked Barone if he got the letter and whether he was going to testify to the story contained in the letter. Barone again told defendant that he did not know what he was going to do. Following this meeting defendant continued to approach Barone in the jail, asking for his decision and offering to pay his bail. Prior to trial Barone turned over the postcard and the letter to the prosecutor.

In a post-trial proceeding, Judge Chaiet amplified on the reasons for his conclusion that the letter and postcard were admissions that were not barred by the hearsay rule. He observed that the handwriting on both documents appeared to be the same; that one particular word ("MothAfuckAs") was spelled and capitalized in the same peculiar way in both documents; that Barone had testified that defendant acknowledged the letters in verbal and gestured conversations while both were incarcerated at the Monmouth County Correctional Institution; that Barone testified that defendant had repeatedly inquired whether Barone would adhere to the story outlined in the writings, thereby demonstrating defendant's knowledge of their content; and that defendant's return address appeared on the letter. We agree with the trial judge that this evidence was more than adequate to permit the admission of this evidence, subject to the jury's own view as to their authorship and persuasiveness. In light of this evidence, there was more than a sufficient foundation for the judge to have concluded that the letter and postcard either contained the admissions of defendant, which would be admissible pursuant to N.J.R.E. 803(b)(1), or were statements that even if not written by defendant were adopted through his oral statements and conduct as his own, which would render the writings admissible pursuant to N.J.R.E. 803(b)(2).

As for the oral statements made by defendant to Barone, it is sufficient to observe that Barone testified that defendant said these things. That foundation was more than adequate to permit the admission of the evidence pursuant to N.J.R.E. 803(b)(1).

We also reject defendant's contention that any prejudice which flowed from the admission of this evidence outweighed its probative value. Although it may be fair to say that this evidence was prejudicial in the sense that it could be viewed as helping the State and adversely affecting defendant, Stigliano v. Connaught Laboratories, 140 N.J. 305, 317 (1995), that is not the type of prejudice to which N.J.R.E. 403 speaks. Moreover, we observe that defendant has failed to provide any cogent rationale to support his belief that he suffered some more substantial form of prejudice which outweighed the probative value of this evidence.

We review a judge's evidence rulings under the abuse of discretion standard. State v. Marrero, 148 N.J. 469, 484 (1997); State v. Ramseur, 106 N.J. 123, 266 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Here, Judge Chaiet conducted a thorough N.J.R.E. 104 hearing regarding this evidence and correctly determined, based upon his view of the evidence, that there was an adequate foundation for the admission of these written and oral statements. We find no error -- let alone the "clear error in judgment" required to overturn such a ruling, State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989) -- in the judge's determination of the evidence issues presented.

We also reject defendant's arguments regarding the sentence imposed. Of course, because this appeal was then pending, we consider these contentions in light of the recent changes to the sentencing laws brought about by our Supreme Court's decisions in State v. Natale, 184 N.J. 458 (2005), State v. Abdullah, 184 N.J. 497 (2005), and State v. Franklin, 184 N.J. 516 (2005). Since Judge Chaiet found present only aggravating factors 3 (the risk defendant will commit another offense) and 9 (the need to deter), N.J.S.A. 2C:44-1(a), in imposing a term in excess of what was then the presumptive term for such convictions, the Sixth Amendment problem identified in Blakely v. Washington, 524 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) was not implicated. In addition, we discern no need to remand for re-sentencing in light of the changes brought about by State v. Natale and the other decisions rendered that same day. Accord State v. Abdullah, supra, 184 N.J. at 506 n.2.

 
Lastly, after carefully reviewing the record, we conclude that the sentences imposed were not manifestly excessive or unduly punitive, do not represent 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).

Affirmed.

The trial included not only the charges against defendant but also those asserted against Morgan, his co-defendant. The appeals of both defendant and Morgan were calendared back-to-back for disposition. We have decided Morgan's appeal in a separate opinion also filed today. State v. Morgan, Docket No. A-3716-03T4.

The police later recovered one discharged bullet at Barone's apartment. An officer testified at trial that this discharged bullet was fired from the handgun recovered during the chase of defendant.

In addition, we reject, as wholly lacking in merit, defendant's contention that the statements were unreliable and thus inadmissible because they were composed in a custodial environment. It is not surprising that defendant has offered no legal authority to support this specious contention.

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A-4926-03T4

January 17, 2006