STATE OF NEW JERSEY v. VANCLEVE ASHLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5291-03T45291-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VANCLEVE ASHLEY,

Defendant-Appellant.

 

Submitted June 1, 2006 - Decided

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 00-01-0076-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, 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

A Passaic County grand jury indicted defendant Vancleve Ashley for various offenses against three victims: first-degree felony murder of Javier Ramos, N.J.S.A. 2C:11-3a(3) and N.J.S.A. 2C:2-6 (count one); second-degree conspiracy to kidnap Ramos, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1b (count two); second-degree attempted kidnapping of Ramos, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-1b(1) or (2) and N.J.S.A. 2C:2-6 (count three); second-degree conspiracy to kidnap Joseph Beesley, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1b (count four); third-degree terroristic threats upon Beesley, N.J.S.A. 2C:12-3b (count five); first-degree robbery of Kerry Ann Turner, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count eight); second-degree aggravated assault upon Turner, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6 (count nine); and first-degree aggravated sexual assault upon Turner, N.J.S.A. 2C:14-2a(3) or (5) and N.J.S.A. 2C:2-6 (count ten).

The indictment also charged co-defendant Bobby Jackson, along with defendant, with attempted kidnapping (count three), aggravated assault (count nine), and aggravated sexual assault (count ten). Jackson was also independently charged with second-degree aggravated assault against Henry Owunna, N.J.S.A. 2C:12-1b(1) (count seven). Jackson and co-defendant Richard Hogen were charged, along with defendant, with felony murder (count one) and conspiracy to kidnap (counts two and four). Additionally, Jackson, Hogen, and Michelle Hogen were charged with third-degree promoting prostitution, N.J.S.A. 2C:34-1b(2) (counts six, eleven, and twelve).

Counts one, two, three, six, eight, nine, and ten were either severed or not moved by the State. Defendant was tried on counts four (second-degree conspiracy to kidnap Beesley) and five (third-degree terroristic threats upon Beesley). His trial began on September 9, 2003 and lasted until September 18, 2003, when the jury convicted him of second-degree conspiracy to kidnap Beesley, count four, and simple assault against Beesley, a lesser-included offense of count five, third-degree terroristic threats. The court imposed a nine-year custodial term with four years of parole ineligibility on count four, and a six-month concurrent sentence on the simple assault conviction. On appeal, defendant raises the following issues:

POINT ONE

THE DEFENDANT WAS DENIED A FAIR TRIAL WHERE THE STATE INTRODUCED TO THE JURY A WITNESS, WHO WAS CHARGED WITH THE DEFENDANT AS A CO-CONSPIRATOR, KNOWING BEFOREHAND THAT THE WITNESS WAS LIKELY TO INVOKE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.

POINT TWO

THE TRIAL COURT DID NOT ACCURATELY AND UNDERSTANDABLY INSTRUCT THE JURY ON THE DEFINITION OF THE TERM "TERRORIZE" IN THE CONTEXT OF THE CONSPIRACY TO KIDNAP CHARGE.

POINT THREE

THE TRIAL COURT DID NOT DETERMINE WHETHER THE STATE COULD ESTABLISH THE "OTHER CRIME" EVIDENCE BY THE CLEAR AND CONVINCING STANDARD.

We have carefully considered the allegations in light of the record and appropriate legal principles. We affirm defendant's conviction and vacate defendant's sentence and remand for resentencing.

I.

Hogen operated an escort/prostitution agency from an office on the second floor of 10 Squirrelwood Road in West Paterson. The escorts utilized drivers to transport them to and from their clients. In late 1998 or early 1999, Hogen hired Beesley as a driver. Beesley had dated Hogen's wife, Michelle, during high school, and Beesley and Michelle had two children in 1993 and 1994. The Hogens married in 1995. Beesley was having financial difficulties, including trouble paying child support for the two children he had with Michelle.

Bobby Jackson began working as a driver for the business in early 1999. A conflict arose between Jackson and Beesley after Beesley alleged that Jackson was selling drugs to the escorts. In early March 1999, Jackson brought defendant, his cousin, to the agency office and introduced him to Hogen as his "muscle, his Rottweiler," or his "Pit Bull."

Later that day, Jackson and defendant confronted Beesley in the stairwell outside of the office. Jackson told defendant that Beesley was "the man that's been talking shit." Defendant grabbed Beesley, punched and kicked him, and threw him down the stairs. Hogen, his wife, and Harold Morcom, another driver for the agency, were upstairs in the office and heard yelling and pounding noises coming from the stairwell. They went to the scene and found Beesley bleeding and lying on his back at the bottom of the stairs. Defendant and Jackson were standing in the stairwell. According to Hogen, defendant made a comment about getting "a little carried away." When Beesley got up, he said defendant, whom he referred to as "Q," hit him and he was "thrown down the steps."

Two or three weeks after the assault, Beesley left the agency because of "[a]ll the threats that were being made." Jackson and defendant told Hogen that Beesley was spreading rumors about having an affair with Michelle and had hired someone to kill Hogen and his children. They offered their services to Hogen, for a fee, to "handle the situation."

Hogen agreed to pay $1000 to defendant and Jackson to bring Beesley to his office. The plan was that at the office, Jackson or defendant would hit Beesley if Hogen so indicated by "smack[ing] the wall." To carry out the plan, Jackson and defendant, in the presence of Hogen, called Beesley and told him to meet them at Checkers restaurant. Beesley agreed, but fearing for his safety, decided to bring his cousin, who knew defendant and Jackson, with him.

When Beesley arrived at the restaurant parking lot, defendant told him to accompany Jackson and him to Hogen's office. According to Beesley, defendant told him they were getting paid to bring him to the office and the price would increase if he refused to go peacefully and they had to "mess [him] up." Hogen, however, indicated at trial that his agreement with defendant and Jackson did not require them to use physical force to bring Beesley to the office.

Defendant and Jackson also told Beesley that they had fabricated the story about Beesley threatening to harm Hogen in order to obtain money from Hogen. Although Beesley was scared and did not want to go with Jackson and defendant, his cousin told him he would not be hurt. He also decided to go because defendant and Jackson had told him that if he didn't show up, "[t]hey were going to come find [him] anyway and do what they were paid to do."

Beesley drove to the agency office with his cousin and a woman named Crystal Shobert. Before entering the office, Beesley told Shobert to contact the police if he and his cousin did not return to the car.

In the office, defendant ordered Beesley to sit in a chair, and then stood behind him with his hands on his shoulders. Jackson, Beesley's cousin, and Michelle Hogen were also in the room. Hogen stood across from Beesley and began "ranting and raving" at him about the alleged rumors and threats upon his life. Defendant "nonchalantly whisper[ed]" in Beesley's ear that he should just "go along with it" and nothing would happen. At one point, defendant put his arm around Beesley's neck in a choke hold, making it difficult for Beesley to breathe, and lifted him out of the chair. Defendant told Beesley he would be killed if he harmed Hogen.

During the encounter, Beesley appeared very nervous; he was shaking and trembling. Hogen decided not to "slap the wall to get him beat up because the guy was already trembling." Beesley testified that throughout the incident, he was "scared out of [his] mind." The confrontation ended approximately one half hour after it began when Beesley's cousin told Hogen that he would guarantee that Beesley would not harm him or his family.

At a pretrial hearing, the trial judge ruled that the stairwell assault was admissible. He reasoned that the incident helped explain Beesley's motivation to agree to meet Jackson at Checkers several weeks later. The judge further reasoned that defendant suffered no prejudice by the admission of the reference to Jackson's alleged drug dealing, which was revealed in the stairwell incident, because Beesley's drug allegations did not involve defendant.

On the fifth day of trial, the prosecutor announced, in the presence of the jury: the "State calls Bobby Jackson." Defense counsel objected and requested that Jackson's attorney be present during the testimony. Jackson's attorney appeared, and outside the presence of the jury he told the judge that Jackson claimed his Fifth Amendment right against self-incrimination and refused to enter the courtroom. The judge denied Jackson's application to invoke the Fifth Amendment; he reasoned that Jackson had already pleaded guilty, been sentenced, and had no appeal pending. The judge held Jackson in contempt when he refused to testify. Because the jury heard the State call Jackson as a witness, the trial court instructed the jury that Jackson was not available as a witness.

II.

We address the latter issue first. Defendant claims he was denied a fair trial when the State called Jackson as a witness and Jackson refused to testify.

After the judge held Jackson in contempt for refusing to testify, defense counsel requested the judge to provide the jury with a curative instruction to explain that Jackson's failure to testify was no fault of defense counsel or defendant. The judge and counsel discussed the wording of the instruction, and the judge agreed to use defense counsel's phrase that Jackson was "not available as a witness." Accordingly, the judge instructed the jury as follows:

Bobby Jackson is not going to be called as a witness in this case. He's not available as a witness. That has nothing to do with the position taken by either side in this case. And it is not something that should come into your deliberations in any way at all when you're assessing the merits of this case.

Defendant contends that the trial court's instruction to the jury was insufficient because the trial court did not condemn the State's conduct or specifically tell the jury that the error was not defendant's fault, leaving the jury to "speculate why the defendant did not want the State to call Jackson as a witness." We disagree.

"[W]hen the prosecution offers a witness who appears to be in complicity with a defendant, who then refuses to testify on grounds of constitutional privilege, such tactic will require a reversal if the prosecutor knew in advance or had good reason to believe the witness would claim his privilege against self-incrimination." State v. Jordan, 197 N.J. Super. 489, 502 (App. Div. 1984) (citing State v. Fournier, 91 N.J. Super. 477, 480-81 (App. Div. 1966)). The proper procedure is for the prosecutor to ask the witness in advance

whether he intends to testify and then inform[] the court and defense counsel of the result of the inquiry before adducing the proofs in open court. If the prosecutor, though having reason to believe the witness will plead his privilege, wishes to test his intent to do so by putting him on the stand and asking the questions, this should be done in the first instance out of the presence of the jury.

[Fournier, supra, 91 N.J. Super. at 481.]

Here, although a better approach would have been for the prosecutor to first question Jackson before calling him as a witness in front of the jury, calling Jackson's name, without more, does not warrant reversal under the circumstances. Although the prosecutor had apparently been told by Jackson's counsel that Jackson might file a motion to withdraw his guilty plea, no such motion had yet been filed. The prosecutor believed, and the trial court agreed, that Jackson had no valid Fifth Amendment privilege to assert, given that he pleaded guilty and was sentenced approximately ten months prior to defendant's trial and had not filed an appeal.

Furthermore, defendant suffered little actual prejudice. In both Jordan, supra, and Fournier, supra, the witness had asserted his Fifth Amendment privilege against self-incrimination from the witness stand, in the jury's presence. Jordan, supra, 197 N.J. Super. at 495-97, 502-03; Fournier, supra, 91 N.J. Super. at 479-81; see also State v. Jamison, 64 N.J. 363 (1974). Here, Jackson never took the witness stand or even entered the courtroom. His Fifth Amendment privilege was never asserted before the jury, and he was never questioned in the jury's presence. The jury was not told Jackson's reason for not testifying.

Notably, the trial judge provided a prompt curative instruction, using the very language suggested by defense counsel. The judge informed the jury that Jackson was unavailable without mentioning Jackson's assertion of his Fifth Amendment privilege. The jury was told that Jackson's failure to testify was not related to either party's position, and it was not to consider Jackson's failure to testify in reaching its verdict. There is no evidence that the jury was unable to follow these instructions; defendant's contention that the jury was left with confusion is mere speculation. See Williams v. James, 113 N.J. 619, 632 (1989) (juries ordinarily deemed capable of following curative instructions to ignore prejudicial information). Thus, the prosecutor's calling Jackson as a witness in front of the jury does not constitute reversible error.

III.

We next turn to defendant's contention that the trial judge failed to accurately instruct the jury on the definition of the term "terrorize" in the context of the conspiracy to kidnap charge. In instructing the jury, the trial judge explained,

[A] person is guilty of kidnapping if he unlawfully removes another a substantial distance from the vicinity where he was found or if he unlawfully confines another for a substantial period with the purpose to inflict bodily injury on the victim or to terrorize the victim.

[T]he elements of this crime of kidnapping are, number one, that the perpetrator unlawfully removed the victim a substantial distance from the vicinity where he was found or unlawfully confined the victim for a substantial period; and, two, that the removal or the confinement was done with the purpose to inflict bodily injury on or to terrorize the victim.

During deliberations, the jury submitted a note to the court, which asked how to define the term "terrorize" for purposes of the conspiracy to kidnap charge. The judge, over defense counsel's objection, gave the following instruction:

To terrorize means to create the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger. The term terrorize as used in this criminal statute refers to fear created from a seriously threatened harm that would be considered serious and imminent by an ordinary person having the same experience as the victim and situated as the victim was.

The trial judge took this definition largely from Black's Law Dictionary, which defines terror as "alarm, fright dread; the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger." See Black's Law Dictionary 1643 (4th ed. 1968). Defendant argues that instead of using the dictionary definition of "terrorize," the trial court should have defined terrorize as the term "terroristic threats" was defined in Cesare v. Cesare, 154 N.J. 394, 402 (1998) as containing the following elements: "whether (1) the defendant in fact threatened the [victim]; (2) the defendant intended to so threaten the [victim]; and (3) a reasonable person would have believed the threat."

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). The parties are entitled to a charge that "fully, clearly, and . . . accurately . . . sets forth the fundamental issues." State v. Ball, 268 N.J. Super. 72, 112 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied sub nom., Mocco v. New Jersey, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996).

When examining the jury charge for reversible error, our scope of review is limited to whether the charge was clearly capable of producing an unjust result. State v. Green, 86 N.J. 281, 291 (1981). We must consider the charge as a whole to determine whether it adequately conveyed the law and did not mislead or confuse the jury. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Gaikwad, 349 N.J. Super. 62, 75 (App. Div. 2002). A conviction will not be reversed when the reviewing court determines beyond a reasonable doubt that the jury would have found the defendant guilty absent an erroneous instruction. U.S. v. Goldstein, 442 F.3d 777, 781 (2d Cir. 2006).

A person is guilty of the crime of kidnapping if "he unlawfully removes another . . . a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period," with the purpose "[t]o facilitate commission of any crime or flight thereafter," or "[t]o inflict bodily injury on or to terrorize the victim or another." N.J.S.A. 2C:13-1b(1), (2). The statute does not define "terrorize." See N.J.S.A. 2C:13-1.

The "paramount goal" in interpreting a statute is to ascertain the Legislature's intent; the statutory language provides the best indicator of that intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005). When the average person would understand the words used in a statute, and the legislature provides no explicit indication of special meaning, the terms used in the provision will carry their ordinary, well-understood meanings. State v. Afanador, 134 N.J. 162, 171 (1993); see also DiProspero, supra, 183 N.J. at 492 (statutory words should be ascribed their "ordinary meaning and significance"). To ascertain the ordinary meaning of words used in a statute, courts typically look to a dictionary. See e.g., State v. Mortimer, 135 N.J. 517, 532-33 (1994), cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994); Serv. Armament Co. v. Hyland, 70 N.J. 550, 556-57 (1976).

Here, the Legislature has not incorporated the specific three elements of "terroristic threats," as set forth in Cesare, supra, 154 N.J. at 402, into the kidnapping statute. Neither should we. Our duty is to construe and apply the statute as enacted; not to "write in an additional qualification" that the Legislature omitted in drafting the enactment. DiProspero, supra, 183 N.J. at 492. The trial judge gave the word "terrorize" as used in the kidnapping statute its ordinary meaning as is found in the dictionary; that was not error.

Defendant's alternate argument is that the record contained insufficient evidence of his purpose and intent to terrorize Beesley. Not so. According to Beesley, defendant told him that he and Jackson would get paid more money if they had to "mess [him] up" in order to get him to Hogen's office. Defendant and Jackson told Beesley that if he did not show up at the office, they would find him and "do what they were paid to do." In Hogen's office, defendant stood behind Beesley, put his arm around his neck in a choke hold, made it difficult for him to breathe, and lifted him out of the chair. Defendant told Beesley he would be killed if he harmed Hogen. Beesley was "scared out of [his] mind," shaking and trembling throughout the encounter.

Defendant's arguments that the record did not contain sufficient evidence to prove that he terrorized Beesley are without merit.

IV.

At a pretrial proceeding, the court determined that evidence of defendant's alleged stairwell assault on Beesley was admissible "other-crime" evidence. See N.J.R.E. 404(b). Defendant argues that insufficient evidence was presented to the trial court to show that he threw Beesley down a staircase; that the other-crime evidence was not demonstrative of defendant's motive for kidnapping Beesley; and that the trial court's limiting instruction was "injuriously inarticulate."

Evidence of other crimes is "not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith," but may be admitted for other purposes, including proof of motive and intent, when "such matters are relevant to a material issue in dispute." N.J.R.E. 404(b). The New Jersey Supreme Court developed a four-part test to determine when evidence of other crimes is admissible:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged.

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

Determinations regarding the admissibility of other-crime evidence fall within the sound discretion of the trial court. State v. Marrero, 148 N.J. 469, 483 (1997). Defendant's argument is that the evidence of the stairwell assault was not established by clear and convincing evidence, as required by the third prong of the Cofield test. The clear and convincing standard of proof has been described as:

evidence . . . which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable (the factfinder) to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. The clear and convincing standard may be satisfied by uncorroborated testimonial evidence.

[State v. Hernandez, 170 N.J. 106, 127 (2001) (internal quotation and citation omitted).]

Here, sufficient evidence of the stairwell assault was presented to satisfy this standard. During the pretrial hearing, Beesley testified that he had confronted Jackson about dealing drugs to the escorts and told him that Hogen would find out. A couple of days later, Jackson brought defendant to the office and met Beesley as he was walking up the second flight of stairs. Pointing out Beesley, Jackson told defendant: "that's the person who has been talking shit." Beesley said defendant then punched him in the head, knocked him to the ground, threw him down the flight of stairs, and kicked him. He remembered seeing Michelle Hogen at the top of the stairs saying "no, don't do that."

Beesley's testimony that defendant was the one who assaulted him in the stairwell was further bolstered by Michelle Hogen's testimony. During the N.J.R.E. 404(b) hearing, she testified that immediately prior to the assault, Jackson brought defendant into the office "to have Joe [Beesley] beat up." Jackson and defendant spoke about how "they wanted to take care of the situation" and asked Michelle Hogen where Beesley was. When Beesley returned, Jackson and defendant went into the stairwell to meet him. Michelle Hogen, who remained in the office, then heard someone scream and fall down the stairs. She immediately ran to the stairwell and told defendant and Jackson that "enough is enough." From the top of the stairway, she saw Beesley lying unconscious at the bottom of the stairs. Defendant and Jackson were the only other people in the stairwell, and were joking about "dragging [Beesley] out of there." Michelle Hogen told them that she "didn't want to see no more of it," and they left. This testimony, together with Beesley's recollection that defendant was the one who punched him and threw him down the stairs, was sufficient for the trial court to form "a firm belief or conviction as to the truth of the allegations sought to be established," Hernandez, supra, 170 N.J. at 127; it satisfies the clear and convincing standard.

We also disagree with defendant's argument that the purpose for which the stairwell incident was admitted is "cloudy" and that the trial court's limiting instruction was inadequate. Following the pretrial hearing, the judge concluded that the assault was relevant to Beesley's state of mind when he agreed to meet Jackson and defendant at Checker's and to go to Hogen's office. The judge explained:

I readily see a great deal of relevance to this. . . . You can't understand Mr. Beesley's conduct or its meaning in attempting to understand the conduct without knowing about this prior incident.

I find it extremely relevant, frankly. Mr. Beesley's conduct is very anomalous and almost impossible to make any sense of, if you believe it's true, unless you know about this prior incident.

It seems to me that this prior incident sheds an awful lot of light on understanding Mr. Beesley's conduct, his reaction. He gets a call and he says all right, I'll go to Checkers. Yes, I will go to 10 Squirrelwood Road. I remember Mr. Beesley's testimony as to why he did that. I remember the counsel that he got from his relative about well, you have got to go, you can get this over with and so forth.

It is prejudicial to Mr. Ashley but it is so relevant to the jury having to try to understand this, if they believe it.

. . . .

The question then becomes whether or not, under the Cofield criteria, this incident is something that should be allowed and admissible at this trial. And while I recognize the prejudice to Mr. Ashley, the defendant, I am satisfied that the probative value is so substantial that it outweighs the prejudice to the defendant.

The evidence of the stairwell assault showed why Beesley would agree to meet defendant and Jackson at Checker's and at Hogen's office even though he was reluctant to do so. See State v. Chenique-Puey, 145 N.J. 334, 342 (1996) (evidence of prior violent acts by defendant against same victim in prosecution for terroristic threats showed that victim had reason to believe defendant would act on threats). In other words, that defendant had previously assaulted Beesley is relevant to explain why Beesley obeyed defendant's orders to go to Hogen's office peacefully, in order to avoid getting "mess[ed] up."

The trial judge also concluded, and we agree, that the stairwell incident was relevant to defendant's motivation and intent to terrorize Beesley as part of an ongoing conspiracy:

[I]t sounds a whole lot to me like the same conspiracy and an ongoing conspiracy. . . . [C]ertainly there was a conspiracy in place . . . between Mr. Jackson and the defendant Ashley at the date of this incident in the office and it was a conspiracy that focused on inflicting some harm or addressing Mr. Beesley. . . .

Mr. Jackson brought Mr. Ashley there. Mr. Jackson said we are working together, in effect, and we are going to take care of Beesley; don't worry about it, we'll take care of that problem for you.

. . . .

The object is to terrorize and/or inflict bodily injury on Joe Beesley.

When evidence of other crimes or wrongs is admitted as to a particular issue, the trial court must instruct the jury on the limited use of that evidence. State v. Nance, 148 N.J. 376, 391 (1997). Following Hogen's direct testimony, which included evidence of the stairway assault, the trial court instructed the jury about the use of the stairwell assault:

You know that the events that are alleged in counts one and two are events that occur some time around the Eastertime of '99. . . . And you've heard testimony now from witnesses about events that occurred prior to that time, have been identified as being some weeks prior to that time. Mr. Vancleve Ashley is not charged with committing any offense or wrong on any occasion weeks prior to the events alleged in the indictment. That evidence and that testimony has been allowed to you for a limited purpose.

. . . .

Normally evidence, like the testimony I've just outlined, referring to what Mr. Hogen said occurred several weeks prior to the date alleged in the indictment, the confrontation allegedly with Beesley and his winding up at the bottom of the stairs and what was said on that occasion, evidence like that testimony is inadmissible under our Rules of Evidence. And this is so because the Rules of Evidence, specifically, provide that evidence that a person committed an offense on one occasion is inadmissible to prove a disposition to commit a crime on a different or subsequent occasion. Therefore, you may not take this evidence and conclude from it that the defendant Vancleve Ashley is a bad person, and thus, has a disposition which shows that he is likely to have done the act or acts with which he is charged here in count one and count two; or to show a general disposition of the defendant Vancleve Ashley to commit bad acts.

That is not the purpose of allowing this evidence. And it must not be considered by you in that way. So you must be careful to construct your thinking not to allow that to happen.

The Rules of Evidence do, however, permit such testimony where such evidence relates to some other fact or issue in the case including the, what is alleged to be the defendant's purpose for committing the offenses charged. You remember the first charge is called conspiracy to commit kidnapping. . . . Conspiracy means an agreement of two or more people to do an unlawful act, the unlawful act being kidnapping, which kidnapping involved removing someone from their vicinity where they're found to another place a substantial distance away for a substantial period of time for a particular purpose, for the purpose to terrorize that person or to inflict bodily injury on that person.

So this evidence that I've outlined to you about what is alleged to have occurred some weeks before the date referred to in the indictment was allowed for that purpose of whether or not you feel it is relevant to the issue of the purpose for which this conspiracy to kidnap is alleged to have occurred.

Furthermore, count two charges what is called terroristic threat. And that involves threatening to kill Joseph Beesley with the purpose to put him in imminent fear of death under circumstances reasonably causing Joseph Beesley to believe the immediacy of the threat and the likelihood that it would be carried out. That is another limited purpose for which this evidence has been allowed. As to whether or not you find it relevant with regard to the threat being made with the purpose of putting Mr. Beesley, allegedly, in imminent fear of death under circumstances that reasonably would cause him to believe the immediacy of the threat and the likelihood that it would be carried out.

. . . You first decide whether to accept this evidence in the first place and if you do then you decide whether or not it bears on the limited issues I've just referred to.

. . . But what you may not do under the circumstances is consider such evidence as indicative of a general disposition of the defendant to commit the crimes alleged in count one and count two.

[(emphasis added).]

This limiting instruction was appropriate. It accurately directed the jury not to consider the stairwell assault as evidence that defendant had a disposition to commit the crime charged. The instruction explained the limited purposes for which the evidence could be used; to show defendant's purpose to terrorize Beesley and to explain his state of mind in believing the threats.

Defendant also contends that the limiting instruction was insufficient because it was not given immediately when the other-crime evidence was introduced, but was given after Hogen's testimony. We reject that argument. In addition to providing the limiting instruction after Hogen's direct testimony, the judge gave a similar instruction in its charge at the end of the case. See State v. Compton, 304 N.J. Super. 477, 483 (App. Div. 1997) (limiting instruction should generally be given at time of other-crime evidence and again in final jury charge), certif. denied, 153 N.J. 51 (1998). Although the preferred practice is to give the limiting instruction either "before, simultaneously with, or immediately after, the admission of the other-crimes evidence," State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.), certif. denied, 165 N.J. 138 (2000), the failure to give the limiting instruction on all appropriate occasions has been deemed not clearly capable of producing an unjust result. See Hill v. N.J. Dep't of Corrs. Comm'r, 342 N.J. Super. 273, 305 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002); see also Angoy, supra, 329 N.J. Super. at 89 (no prejudice when limiting instruction given only in final charge two weeks after other-crime evidence introduced). Here, although the instruction was not given simultaneously with the other-crimes evidence, it was given promptly, after Hogen's direct testimony, before cross-examination, and reemphasized in the final charge.

Defendant also contends that the trial court failed to properly sanitize prejudicial references to defendant as Jackson's "muscle," and "Rottweiler," and references to defendant by his street name "Q." The arguments are unpersuasive.

Hogen testified that Jackson referred to defendant as his "Rottweiler." Defense counsel immediately objected, and outside the presence of the jury Hogen indicated that Jackson first introduced defendant to him as "his muscle, his Rottweiler, his Pit Bull." The trial court instructed Hogen that he could not mention the term "Rottweiler" but could use the term "muscle." The court found that the term was relevant and probative as "proof of a conspiracy, assuming the jury accepts it as true, of a conspiracy involving Jackson and [defendant] to deal with Mr. Beesley." The trial judge did not abuse his discretion. Jackson's reference to defendant as his muscle may be viewed as intending to impress upon Hogen the idea that defendant and Jackson were capable of harming or terrorizing Beesley.

The "use of defendant's street nickname during trial cannot serve as a per se predicate for reversal." State v. Paduani, 307 N.J. Super. 134, 146 (App. Div.), certif. denied, 153 N.J. 216 (1998). When a nickname is pejorative, such as "Marijuana" or "Trouble," it should generally be kept from the jury unless it is relevant for some purpose. Id. at 147. The admission of irrelevant nicknames does not mandate reversal unless "'some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt.'" Ibid. (quoting State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.), certif. denied, 111 N.J. 609 (1988)).

Here, defendant's street nickname, "Q," does not suggest criminal activity. Many of the witnesses knew defendant as "Q" and used that name when referring to him; thus, it was necessary for the jury to understand that "Q" was defendant. Nor has defendant identified any tangible prejudice resulting from the references to his street name. Thus, his argument fails. See ibid. (reference to defendant's street name not improper when defendant consistently identified by nickname during trial and defendant pointed to no tangible form of prejudice as result).

V.

Defendant asserts that the prosecutor's use during summation of various statements made by Hogen on August 6, 1999 was improper and warrants reversal. Defendant challenges the following statements the prosecutor made during summation:

The best source of information that we have . . . is the original statement of Rich Hogen. . . .

On August 6th, the early morning hours of August 6th of 1999, Rich Hogen was under arrest. He was being interrogated. He had been given his Miranda Rights. . . . He had been charged and would be charged with crimes.

. . . What is a better source of information . . . than what is admitted to by somebody who is under arrest for crimes?

At that time, on August 6th, 1999, there was no agreement whatever between Rich Hogen and the State of New Jersey for testimony in this case. None. He was under arrest being interrogated and during that interrogation he admitted to crimes. How could you have a better source of information than that? He is saying things which he knows are admissions of crimes.

Now you won't have the statement itself with you in the jury room, but you heard a great deal of testimony from that statement. So the things that it seems you can put the most stock in from the beginning of this case to the end are the things that are said right up front by this man under arrest in police custody admitting crimes . . . .

The prosecutor then proceeded to quote from Hogen's out-of-court statement.

So what does Hogen say about that, about what was going to happen to Beesley? "Then Bo [Jackson] and Q [defendant] kept throwing other options out" -- do you remember from the original statement as you heard it from the stand as well -- "Then Bo and Q kept throwing other options out at random to do. Finally we settled on bringing [Beesley] into the office to talk to him and to bring in another person and beating him up," that person, "beating him up in front of [Beesley] to show that they can't do that to me; that killing me wasn't a good idea."

If grabbing up another person . . . and beating tha[t person] in front of Joe Beasley isn't designed to terror[ize] Beesley, what could possibly be designed to terrorize Joe Beesley? "That killing me wasn't a good idea."

Then "Did you offer any type of compensation for this service? Yes. I asked them how much so I could have a peace of mind and Q said $1000." August 6, 1999, not just from the stand here.

. . . .

"Q told [Beesley] and [his cousin] that if something happens to me" -- this is Rich Hogen talking -- "[Beesley] and [his cousin] would be killed." That is a threat of death; that is a threat of killing; that is a terroristic threat.

Because "[p]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries," they are given "considerable leeway" in their summations "so long as their comments are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Even when a prosecutor makes improper comments, that misconduct does not constitute reversible error unless it deprives a defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Here, the lion's share of the prosecutor's remarks about Hogen's August 6, 1999 statement to the police were fair comment on the trial evidence. On both cross and redirect examination, Hogen was asked about the August 6 statement; he admitted he told police in that statement that he paid defendant and Jackson $1000 to bring Beesley to his office; and that Beesley was very scared when he arrived at the office.

The State concedes that the prosecutor should not have told the jury about that portion of the August 6 statement in which Hogen said that defendant told Beesley he would be killed if anything happened to Hogen; that portion of the statement had not been mentioned to the jury. Nevertheless, the prosecutor's remarks were not so egregious as to deprive defendant of a fair trial. Evidence that defendant threatened to kill Beesley if he harmed Hogen was otherwise provided during trial. Hogen testified on both direct and cross-examination that defendant told Beesley he would kill him if anything happened to Hogen. Beesley testified that defendant and Jackson told him they would kill him if he harmed Hogen. Thus, the prosecutor's reference to the August statement containing remarks about defendant threatening Beesley served to reiterate information that the jury already heard. As such, it did not deprive defendant of a fair trial.

Defendant further argues that the prosecutor's statements suggested that the August 6, 1999 statement could be used as substantive evidence. Defendant points to inconsistencies between the trial testimony and the statement, which seemed to indicate that the plan was to abduct both Beesley and another person. Contrary to defendant's argument, the trial testimony was not inconsistent with the earlier statement. On redirect, Hogen acknowledged that the initial plan included "an option to bring another person in at the office and beat that person up in front of Joe Beesley."

Even if the prosecutor made remarks about the August 6 statement that were inconsistent with the trial testimony, the issue was addressed by the trial court's instruction:

Evidence showing that a witness has given a statement or testified previous to the trial showing that at this earlier time the witness has said something which is inconsistent with the witness' testimony at the trial may be considered by you for the sole purpose of judging the witness' credibility. It may not be considered by you as substantive evidence, that is, as proof of the truth of what is stated in the prior contradictory statement.

First of all, I'm sure you understand, but let's be clear what a prior contradictory statement is. . . . It's a statement made at an earlier time -- so it's prior to the testimony at trial -- and it says something different than, the statement made at an earlier time, than what is said at the trial, so it becomes a prior inconsistent statement.

It's important to understand the use that can be made of this. Of course if you find that someone says -- tells you something at the trial and it's shown at an earlier time the witness said something else, that may cause you to question the worth of what the witness is saying at the trial. That would be using it to impeach the credibility, believability of what the witness said at the trial. You may at the same time consider all the circumstances and find that it does not impeach the witness' credibility. Again, that's a determination for you as the judges of the facts to make.

. . . You can't use the prior inconsistent statement to prove the truth of what was said in that prior statement. If the witness at trial says what I said in that prior statement is true, you can consider what the witness said at the trial, that is, that what was said in the prior statement is true. You can use what was testified to at trial as substantive evidence, but you can't use the prior statement as substantive evidence; it can only be used for the purpose of impeaching the witness' credibility at trial.

The jury was correctly instructed not to consider prior statements of a witness as substantive evidence. See State v. Winter, 96 N.J. 640, 649 (1984). We find no reversible error.

Defendant claims the prosecutor's statements about Beesley's character and tendency to become a victim were not based on the evidence, were improper, and were used only to inflame the jury. The prosecutor remarked:

Joe Beesley is . . . a hard-luck guy. He probably creates a lot of his own hard luck, because he talks; he says things that people don't like; he makes himself a target. He's a little guy [who has] been pushed around his entire life. He probably wonders why he keeps running into these hard-luck situations. He becomes the perfect target. He becomes the perfect shield. He becomes the perfect method for making money, because he had previously accused Bobby Jackson of selling drugs to the prostitutes.

Because evidence of Beesley's character throughout his life was not in evidence, the trial judge instructed the jury as follows:

[Y]ou heard a statement in summation that Joseph Beesley was pushed around all his life. That's not a correct statement. We don't know what happened in all of Mr. Beesley's life. You have some testimony, which if you accept, you can find that that characterization would apply to a period of time involved in this case. But I don't mean to suggest that that was anything more than just imprecise and maybe semantical. But there is no evidence about what went on in all of Joseph Beesley's life. So anything like that, of course, you couldn't find to be evidence of what happened all of his life, because it's not in the case. So a statement like that, of course, you will disregard.

Although the prosecutor should not have commented on Beesley's tendency to be a victim, the comments did not directly bear on the elements of the offenses charged. Thus, the potential prejudice resulting from the prosecutor's portrayal of Beesley as an easy victim was not so great as to undermine confidence in the verdict, and does not warrant reversal. See State v. Macon, 57 N.J. 325, 335 (1971) (whether error warrants reversal depends on "possibility that it led to an unjust verdict"). Any potential prejudice was cured by the trial court's clear instruction directing the jury not to consider the comments about Beesley's character.

VI.

Defendant's claims that the prosecutor made remarks during summation that "cast aspersions on the motives of defense counsel," and that the trial court erred in denying his motion to acquit at the close of the State's case are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

VII.

We next turn to defendant's sentence. In arriving at defendant's sentence, the trial court considered the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1. See State v. Kruse, 105 N.J. 354, 359 (1987) (trial court should balance aggravating and mitigating factors in arriving at appropriate sentence). The judge found that aggravating factors three (the risk that defendant will commit another offense), six (the extent of defendant's prior criminal record), and nine (the need for deterring defendant and others from violating the law) applied. The judge found no mitigating factors. He was "clearly convinced that the aggravating factors substantially outweigh the nonexistent mitigating factor."

The trial judge sentenced defendant to a nine-year prison term with four years of parole ineligibility on the second-degree conspiracy to kidnap conviction. Because this sentence was in excess of the seven-year presumptive term for second-degree crimes, see N.J.S.A. 2C:44-1f(1)(c), the case must be remanded for resentencing in light of State v. Natale, 184 N.J. 458, 466 (2005).

Finally, defendant claims the trial judge erred when he said the sentence on the conspiracy to kidnap conviction was "not meant to be concurrent with any other sentence." The judge gave no further explanation. In light of our remand for resentencing, the judge should readdress this issue.

We affirm defendant's conviction, vacate the sentence and remand for resentencing.

Affirmed in part, reversed in part and remanded.

 

Richard Hogen, referred to in this opinion as "Hogen," and Michelle Hogen resolved their charges by way of plea agreements. They were sentenced prior to defendant's trial.

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A-5291-03T4

June 27, 2006