STATE OF NEW JERSEY v. BRANDON STILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5456-02T35456-02T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON STILL,

Defendant-Appellant.

___________________________________________________________

 

Submitted November 1, 2005 - Decided April 3, 2006

Before Judges Kestin, Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-03-0562C.

Jacobs & Barbone, attorneys for appellant (Louis M. Barbone, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Brandon Still was found guilty of felony murder, N.J.S.A. 2C:11-3(a)(3); first degree robbery, N.J.S.A. 2C:15-1; second degree reckless manslaughter (amended from murder), N.J.S.A. 2C:11-4(b)(1); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a). He was sentenced to forty-five years in prison with a period of parole ineligibility of thirty years for the felony murder and merged convictions, and to a concurrent five year prison term for the conviction for third degree unlawful possession of a weapon.

On this appeal, defendant makes the following assertions of error:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON THE GROUND OF GRAND JUROR BIAS.

POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING INTO EVIDENCE A QUANTITY OF BULLETS SEIZED ON THE EXECUTION OF A SEARCH WARRANT.

POINT III: THE TRIAL COURT ERRED IN CONVEYING A PARTISAN IMPRESSION IN ITS QUESTIONING OF THE STATE'S WITNESS, LATOYA BOSTIC.

POINT IV: THE TRIAL COURT ERRED IN ITS DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT V: THE TRIAL COURT COMMITTED PLAIN ERROR IN THE CHARGE ON SELF-DEFENSE. (NOT RAISED BELOW).

POINT VI: THE CHARGE ON REASONABLE DOUBT UNCONSTITUTIONALLY DILUTED THE STATE'S BURDEN OF PROOF.

We have considered defendant's arguments in light of the record and applicable law and we find them to be without sufficient merit to warrant reversal or remand. Points I, IV and VI of defendant's brief do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

The State's proofs established the following facts. On March 7, 2001, Latoya Bostic was at the Pleasantville home of Patrice Brooks, her best friend from high school. Bostic and Brooks were members of the Air National Guard and were stationed at the military base in Pomona. During weekends when their unit conducted drills, Bostic would stay with Brooks at her home in Pleasantville because it was close to Pomona.

On that date, Charles Martin, whom Bostic had met at an Atlantic City nightclub the preceding weekend, visited Bostic at Brooks's home. As they had planned, Martin was accompanied by his friend, Anthony Taliaferro, who was to meet Bostic's friend, Tamia Hicks. The two couples were to "double-date."

Martin and Taliaferro arrived in a taxicab at approximately 11:00 p.m. Bostic was upstairs getting dressed, so Brooks let them in the house. Brooks was planning to go out with a male friend to shoot pool. Martin and Taliaferro proceeded to a back living room in Brooks's house.

At about that same time, three other persons arrived: Brooks's companion for the evening; Hicks, Taliaferro's blind date; and Brian Cross, who lived with about seven relatives in one side of a duplex a few houses away. Cross, who was still in high school, had left school with defendant around lunchtime and the two young men had spent time together until Cross noticed people socializing at Brooks's house. While defendant stayed at Cross's duplex, Cross went to the Brooks home to find out what was happening.

As Martin and Taliaferro waited in the back living room, Bostic, Hicks and Brooks engaged in casual conversation with Cross, after which Cross made his way to the back living room. Bostic followed and heard Taliaferro ask Cross his name. Cross identified himself but when he asked the names of the two visitors, one of them responded "I don't have a name." This exchange led to "kind of [an] argument" among the three men. Then, as Brooks and her friend left to play pool, Cross also left.

About a half-hour later, Cross returned with defendant. Bostic met the two young men at the front door and told them "go home." Instead, they pushed her out of the way and entered the house. As they approached, Martin extended his hand to Cross. He apologized for their earlier exchange and explained he had thought Cross was someone else. Cross refused to shake Martin's hand and proceeded to the back living room. On the table in that room was a "Philly Blunt" with marijuana that Taliaferro was intending to share with Bostic and Hicks if they were so inclined.

Sensing an argument was about to ensue, Bostic told Cross and defendant, "y'all need to sit down." Instead of sitting, defendant said, "I see the blunts, who got the weed?" Taliaferro responded by holding up a cigar which contained marijuana. Defendant then suggested that they go on the back porch to smoke and Taliaferro, being suspicious, said "no, I'm not going on the back porch . . . but we can go upstairs." Taliaferro then asked Cross and defendant, "[W]hose weed you smoking anyway?" to which Cross answered, "We smoking your weed." It was then that Cross pulled out what Taliaferro thought was a .38 caliber handgun. When the handgun was drawn, Bostic ran from the room to the staircase. Taliaferro attempted to stand, but Cross used the gun to hit him on his head a few times. Cross and defendant then turned their attention to Martin. As they did, Taliaferro, dazed by the blows, ran from the room and up the stairs in search of a phone to call the police.

Taliaferro found Bostic upstairs speaking on a cordless phone to Brooks. Bostic told Brooks to hurry home because defendant and Cross had guns. Taliaferro tried to snatch the phone from Bostic's hand and the battery fell out. Then he ran out of the house to a house located across the street in search of a phone, but no one answered his knock at the front door. As he started back toward Brooks's house, Taliaferro heard three gunshots. Meanwhile, Bostic testified she also heard three gunshots as she and Hicks were descending the stairs. Upon hearing the shots, Bostic and Hicks ran back up the stairs. Taliaferro testified he watched Cross and defendant flee toward Cross's house. Taliaferro then returned to Brooks's house.

He found Martin, lying on the floor of the back living room, unconscious, breathing very shallowly, and without a pulse. Members of the Pleasantville Fire Department soon arrived and at 12:12 a.m. on March 8, 2001, a little more than twenty minutes after police, firemen, and paramedics arrived on the scene, Martin was pronounced dead. It was determined later that Martin had sustained three gunshot wounds: one from a .38 caliber bullet that struck him below his left armpit, perforated his left lung and heart, and then went through his liver; another from a .22 caliber bullet that struck him below his navel, perforated his small intestines, and came to rest there; and the third from a .22 caliber bullet that struck him from behind, in his left shoulder blade.

At about 1:00 a.m. that morning, defendant and Cross arrived at the home of defendant's mother, Christine Still, in Mays Landing. They stayed there only about fifteen minutes. Knowing they were suspects in the shooting, defendant and Cross spent the next three months together hiding from the police. In mid-June 2001, defendant surrendered to the police. Subsequently, he was named in a five count indictment that charged him with purposeful or knowing murder, felony murder, unlawful possession of a weapon, possession of a weapon for unlawful purposes, and conspiracy.

Defendant was tried before a jury between March 25, 2003 and April 7, 2003. During the trial, defendant testified that the argument between Taliaferro and Cross became so intense that it prompted Martin to pull a handgun. Defendant testified that, upon seeing the gun, he managed to get Martin in a bear hug or death grip. He "tussled" with Martin until the gun, still in Martin's hand, discharged once. Martin fell to his hands and knees and defendant ran. Defendant testified he only heard one gunshot. He never heard three or "however . . . many gunshots they say went off." Defendant did not know how Martin ended up with three bullets in him when defendant only heard one gunshot. Defendant denied having any weapon in his possession and denied that Cross had a gun. Defendant stated he ran because he feared for his mother and because he was just "scared of everything."

As noted, the jury found defendant guilty of felony murder, reckless manslaughter, robbery, and two firearm offenses. On May 9, 2003, the trial court sentenced defendant to an aggregate term of forty-five years in prison, with parole ineligibility for thirty years.

Ninety-one .38 caliber bullets were seized pursuant to a search warrant executed at Cross's residence. Defendant argues the ninety-one .38 caliber bullets admitted into evidence were irrelevant and constituted reversible error. "[R]elevant evidence means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. In determining whether evidence is relevant, the inquiry focuses upon "the logical connection between the proffered evidence and a fact in issue," State v. Hutchins, 241 N.J. Super. 353, 358, (App. Div. 1990), and "whether the proffer 'renders the desired inference more probable than it would be without the evidence.'" State v. Davis, 96 N.J. 611, 619 (1984) (quoting State v. Deatore, 70 N.J. 100, 116 (1976)). However, a determination that "evidence is irrelevant in the sense that it lacks probative value" means that it "does not justify any reasonable inference as to the fact in question." State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985) (quoting McCormick on Evidence, 185 at 544 (3rd ed. 1984)).

The State contended at trial that Martin was shot by Cross once with a .38 caliber handgun, and twice by defendant with a .22 caliber handgun. It attempted to support its theory with the bullets recovered from Martin's body, with Taliaferro's testimony that he recognized the caliber of the firearms brandished by Cross and defendant, and with the bullets seized from Cross's residence. The prosecutor argued in summation that there was evidence that two of the victim's wounds were caused by .22 caliber bullets, and that there were no .22 caliber bullets found at Cross's residence. He therefore suggested "because they were not, I think I can argue the inference, based upon the evidence that was admitted, that [defendant] on his own possessed that .22 caliber handgun when [Cross] went back to get him to do the business that they did at 24 North Third Street."

The trial court allowed the evidence stating, "There is adequate circumstantial nexus within the surrounding circumstances, the alleged path of flight, a matching caliber of weapon or rounds, which under the totality of the circumstances . . . would make it admissible as to circumstantial evidence."

In our view the relevance of the evidence was marginal at best; but, even if it was not at all relevant, we would not reverse on that basis because we fail to discern that any prejudice resulted from admitting the bullets into evidence. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) certif. denied, 170 N.J. 209 (2001) (error in admission of evidence in a criminal trial will not be deemed harmful if the weight of the evidence against the defendant is great).

To show an error was harmful "[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." State v. Macon, 57 N.J. 325, 338-39 (1971) (quoting Fahy v. Conn., 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed. 2d 171, 173 (1963)). As we view the record as a whole, the admission of the ninety-one bullets had little capacity to contribute to defendant's conviction. At worse, they were cumulative. At best, they implicated Cross. On the other hand, the absence of evidence of .22 caliber bullets at Cross's residence does not, in our minds, support the suggested inference that defendant possessed a .22 caliber weapon. The State's evidence merely demonstrated that their search did not uncover .22 caliber bullets. That does not provide a nexus between defendant and the particular type of weapon used on the victim. Far more important was the testimonial evidence in the record which, if accepted by the jury, placed a .22 caliber weapon in defendant's hand. That evidence was sufficient, by itself, to sustain defendant's conviction beyond a reasonable doubt.

Next, defendant contends that the trial judge improperly questioned Latoya Bostic, a witness for the State. Defendant argues that the judge's actions were unnecessary and conveyed to the jury the impression that the judge was partisan to the State. Although a judge's participation must not exceed the bounds of judicial propriety, it is within a trial judge's discretion to question witnesses. Troast v. Lascari, 59 N.J. Super. 110, 117 (App. Div. 1960) (citing Lawton v. Virginia Stevedoring Co., 50 N.J. Super. 564, 580 (App. Div. 1958)). In this regard the judge possesses broad discretion, State v. Ray, 43 N.J. 19, 25 (1964), and may question a witness to clarify existing testimony or to elicit facts material to the trial. State v. Riley, 28 N.J. 188, 200, (1958), cert. denied, 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832 (1959) (citing Village of Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958)). However, the judge's power to participate actively in a trial must be exercised with great restraint and with an effort to maintain "an atmosphere of impartiality," particularly in a jury trial. Ray, supra, 43 N.J. at 25 (citing Band's Refuse Removal, Inc. v. Fair Lawn Borough, 62 N.J. Super. 522, 548 (App. Div.), certif. denied, 33 N.J. 387 (1960)). See generally State v. Guido, 40 N.J. 191, 207-09 (1963).

In this case, Bostic, a witness for the State, gave multiple and somewhat varying accounts of the events that took place on March 7, 2001. On cross-examination of Bostic at trial, defense counsel questioned her about her statements to police on March 8 and March 12, 2001. Then defense counsel sought to confront Bostic with her seemingly conflicting statements concerning whether or not Taliaferro was inside the house when she heard three gun shots. The trial judge intervened and asked a few questions of the witness. The last question clarified Bostic's recollection that Taliaferro was out of the house when Bostic heard the three gunshots. The following exchanges took place during the cross-examination by defense counsel:

Q. Yes. All right. Okay. Now which is it? As you . . . give us your best recollection of this, is it a circumstance where you believe Tone [Taliaferro] leaves and you hear the door, you hear him leave, or you don't hear him leave?

A. I hear him leave.

Q. You hear him?

A. He said he was going across the street.

Q. He said that?

A. Yes.

Q. And is that why you believe he left or is it because you actually heard a door? Is it --

A. I heard . . . the door.

Q. Yes.

A. Now who went out of it I wasn't down there to see.

Q. Right. So this is a . . . mistake in the March 12th statement when you're telling the detectives that you did not hear him leave? That's a mistake?

A. I wouldn't call it a mistake. I would just say from what the . . . victim counselor said before, I mean just little pieces --

Q. Well, I'm asking --

A. I mean I wouldn't call it a mistake.

Q. Okay. All right. . . . Let's clear the slate.

A. Okay.

Q. And let's go to this segment in time. Let's go to the point in time where now you and Tamia --

A. Umhmm.

Q. -- have left the living room, you're upstairs.

A. Okay.

Q. Right. And Tone comes up the stairs and then goes back downstairs.

A. Okay.

Q. All right. Is it correct that when Tone goes downstairs that's when you heard shots?

A. Yes. I don't . . . know . . . that I heard the shot after I heard the door. So if you're asking me . . . was he out of the house, I don't know yet. That's --

Q. No, no. No. I'm sorry. That's not what I'm asking. What I'm asking is is it correct that when Tone goes downstairs you hear the shots?

A. Yes. That is correct. I heard the door first and then the shot.

Q. I'm sorry. Would you go back to the March 8th statement, D-23, please?

A. Umhmm.

Q. On page 17, the top of the page. The first answer is, L.B., Latoya Bostic. You say,

"It seemed like when he went, he went downstairs. We heard them. He . . . didn't come all the way up the steps."

And then,

"How many gunshots?"

"Three."

A. Umhmm.

THE COURT: Well, let's go back to page 16. And then at the bottom of page 16 do you say the following:

"So Tone comes upstairs, says call the cops. He runs back down the steps."

Your answer was?

THE WITNESS: What . . . part are you on?

THE COURT: I'm on page 16, C.W.,

"So Tone comes upstairs, says call the cops. He runs back down the steps."

Your answer was? I'll show you right where I'm talking about.

THE WITNESS: Okay. What was you question? I mean --

THE COURT: Okay.

THE WITNESS: (Indiscernible) right here?

THE COURT: Yes.

THE WITNESS: "He went directly down -- back up downstairs."

THE COURT: And then you were asked,

"And you're still on the phone with Pinky?"

THE WITNESS: "No. By this time I was off the phone."

THE COURT: And C.W. says, "Okay," and then your next response is?

THE WITNESS: "So the next thing I know we hear stuff . . . breaking. Tone comes back up the steps and . . . them . . . got guns. That's when he said call the cops. Them . . . got guns. I'm trying to put the battery back in the phone."

THE COURT: And then C.W. says,

"The battery back in the phone?"

THE WITNESS: "Get the cordless phone and I'm trying to put the battery back in the phone. He (indiscernible) and he say he's going back -- he's going next door to call the cops. While he was out calling the cops, we heard the three gunshots."

THE COURT: And that's what you said just before the questions that you were just asked by Mr. Barbone, is that correct?

THE WITNESS: Umhmm.

THE COURT: Okay.

The judge's intervention in Bostic's cross-examination was neither partisan nor improper. The judge merely attempted to get the witness to state her answers explicitly, in order to provide the jury with a clear understanding of the matter. We perceive no abuse or misuse of judicial discretion.

Moreover, in the jury charge, the judge commented to the jury regarding his intervention. The judge stated:

Fact issues, including issues of credibility are solely for your determination. During the course of this trial for convenience I repeated my recollection of testimony and as well, on occasion just to have a clean record with respect to potential misspeaking, I interjected myself . . . I asked certain questions with regard to some further detail. My only purpose on that was to make sure that things are clear and understandable in a proper context and for no other reason . . . any questions I asked are not intended to suggest one way or the other any credit or belief to be given to any witness who testified in this case.

(emphasis added).

The court's instruction cured any possible detrimental effect his questioning the witness might have had on the jury.

Finally, defendant argues that the trial court committed plain error by misstating the jury charge on self-defense. "[C]lear and correct jury charges are essential to a fair trial" and failure to provide them may constitute plain error. State v. Fortin, 178 N.J. 540, 625 (2004) (citation omitted). The Supreme Court has defined plain error as "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970) (citation omitted).

Ordinarily, "[e]rroneous [j]ury instructions concerning 'matters or issues material to the jury's deliberations'" are presumed to constitute plain error in criminal cases, State v. P.H., 178 N.J. 378, 400 (2004), and are "almost invariably regarded" as "poor candidates for rehabilitation under the harmless philosophy." State v. Vick, 117 N.J. 288, 289 (1989) (citations omitted). Nevertheless, the claim of harmful error in the charge will be determined by a review of the entire charge and the context of the error. State v. Nelson, 173 N.J. 417, 447 (2002). Furthermore, the charge as a whole may be deemed adequate even if not perfectly clear. State v. Masino, 94 N.J. 436, 447 (1983). "Even if the error is of constitutional dimension, it will be held harmless if it is clear beyond a reasonable doubt that the jury verdict would have been the same absent the error." State v. Johnson, 216 N.J. Super. 588, 608 (App. Div. 1987) (citations omitted); R. 2:10-2.

Here, defendant complains that the trial court erred in its charge on self-defense, which provided:

In your inquiry as to whether a defendant who resorted to deadly force knew that an opportunity to retreat with complete safety was available, the total circumstances, including the attendant excitement accompanying the situation may be considered.

(emphasis added by defendant).

Defendant asserts that the Model Charge on self-defense requires an instruction stating that "the total circumstances including the attendant excitement accompanying the situation must be considered." (emphasis added). In the context of the entire charge, the instruction was adequate. The charge placed the burden of proof on the State to prove beyond a reasonable doubt that the defendant knew he could have retreated with complete safety. The substitution of "may" for "must" does not amount to plain error under R. 2:10-2 nor do we believe it had the capacity to mislead the jurors in their deliberations.

We are convinced the verdict would not have changed if "must" had been substituted for "may" in the quoted sentence. The disputed misstatement bearing on self-defense obviously was not determinative since the jury found defendant guilty of robbery, possession of a firearm for an unlawful purpose, and unlawful possession of a handgun, evidencing that the jury did not believe defendant's version of Martin's death. The jury simply did not accept defendant's assertion that Martin was the aggressor, that Martin possessed the only weapon, and that Martin was shot only once during a tussle over that weapon.

Affirmed.

 

(continued)

(continued)

19

A-5456-02T3

April 3, 2006