STATE OF NEW JERSEY v. AS-SHAKOOR WRIGHT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6745-03T56745-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AS-SHAKOOR WRIGHT,

Defendant-Appellant.

 
_______________________________________

Argued April 24, 2006 - Decided May 23, 2006

Before Judges Fall, Yannotti and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-03-00240.

Anthony J. Iacullo argued the cause for appellant (Iacullo, Martino & Marzella, attorneys; Mr. Iacullo and Gabrielle N. Wright, on the brief).

Sara Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Amy F. Newcombe, on the brief).

PER CURIAM

Defendant As-Shakoor Wright was charged with first-degree murder, N.J.S.A. 2C:11-3a (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); and unlawful possession of a weapon, N.J.S.A. 2C:39-5c (count three). Count three was later amended to charge a violation of N.J.S.A. 2C:39-5b. After a trial before a jury, defendant was found not guilty on counts two and three but guilty of second-degree manslaughter, N.J.S.A. 2C:11-4b(1), a lesser-included offense of murder. The judge granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a and sentenced defendant to a term of seventeen years, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence. We affirm.

I.

We begin with a summary of the evidence presented at trial. On the evening of July 19, 2002, defendant went with Derrick Paige (Paige), James Joyner (Joyner) and Shamont Mercer (Mercer) to the Queen of Hearts, a "go-go" bar in Elizabeth, New Jersey. In the bar, the four men saw persons who were members of the Bloods gang. Paige testified that he was not a member of the Bloods but was "affiliated" with the gang because he knew many of its members. Paige stated that defendant, Mercer and Joyner were members of the Bloods. Paige testified that defendant had about twelve Blood members who answered to him "on the street."

At the bar, the Blood members used certain hand gestures associated with this gang.

At some point, Paige had "words" with Gavin Smith (Smith) who was wearing an orange jersey and a pair of jeans. Earl Graves, a member of the Street Gang Task Force in the office of the Essex County Prosecutor, testified that orange and blue are colors that are associated with a gang called the Crips. However, Smith's girlfriend Malieka Thompson testified that Smith was never a member of the Crips. Smith asked Paige if he was a Blood and Paige told him that it was "none of his business." Paige told the other three men that Smith might be a Crip. Paige testified that they "all said we was [sic] going to beat him up." According to Paige, defendant said, "All right."

Defendant and his associates left the bar. Defendant told Paige that when Smith came out of the bar, they were going to beat him up. Paige testified that he saw Mercer hand defendant a handgun. Smith left the bar and started walking up the block to South Street. Defendant followed Smith. Paige, Joyner and Mercer got into a green Ford Focus and drove around the block. Paige said that the green car drove around the block and entered the street where Smith and defendant were walking. Paige testified that he saw defendant shoot Smith. Defendant got into the car and the group drove away. Paige stated that their purpose was to cut Smith off with the car. Paige testified that a week later, defendant told him that he shot Smith when he tried to run.

James Davis (Davis) was "panhandling" outside of the bar on the night Smith was shot. He testified that he observed a man with light skin and braids leave the bar and get into a green car. Davis said that the car left, returned and parked on the corner of South Street.

Davis observed Smith start to walk up South Street. A "heavyset fellow" followed him, walking on the opposite side of the street. Davis identified the "husky" man as defendant. The green car "suddenly pulled off." Davis said that he heard gun fire. Davis looked down South Street and he saw the green car coming up the street. Davis said that Smith realized that he was being followed and ran across the street in front of the car.

Davis testified that he heard more gun fire and he saw Smith hit the ground. Davis could not see who was shooting at Smith, but when the shooting stopped, he saw the green car come down Center Street, pass by and drive away. Davis ran up the street to see if he could help Smith. Smith was gasping for air. Smith was pronounced dead at 2:44 a.m.

Union County Medical Examiner Dr. Leonard Zaretski (Zaretski) testified that Smith was stuck with seven bullets. One bullet entered his left upper-arm, exited the body, re-entered through the chest and caused fatal damage to the heart. This bullet had been fired from a distance of between eleven and twenty-two inches. The other six bullets entered Smith's body through his backside and back. Zaretski testified that the placement of the wounds indicated that the shooter was behind "and/or at the left side of" Smith.

Detective Michael Sanford of the Union County Police Department examined the bullets, bullet fragments and casings found at the crime scene. He testified that all of the casings were fired from the same weapon. He also testified that four bullets and one fragment had been fired from the same gun.

Defendant was arrested on August 22, 2002. Officer Paul T. Pasternak (Pasternak) of the Elizabeth Police Department testified that defendant was informed of his Miranda rights and defendant read, signed and initialed the Department's "Constitutional Rights Form." Pasternak informed defendant that he was under arrest for Smith's murder. According to Pasternak, defendant threw back his head and began laughing. He said, "Oh, man, this is crazy." Pasternak said that defendant began to get nervous and started looking at the ceiling after Pasternak mentioned the Queen of Hearts bar. Pasternak asked defendant what happened at the bar.

Defendant said that, "We first wanted to beat the kid up, but the shots just started." According to Pasternak, defendant told him that he followed Smith from the other side of the street and watched him as he walked. Defendant said that Smith crossed to the side of the street behind the car as it "sprang forward." Pasternak said that defendant told him that Smith did not want to cross the street behind the car. Defendant asserted, "That's it. That is when the shots started. You know what happened." Defendant said that Joyner "shot the guy while he was in front of the car." Smith asked, "Why are you shooting me?" Pasternak testified that the questioning ended with defendant in tears, stating "Just take me to jail. Just take me out of here . . . . You don't know these gangs. They will kill me."

Defendant raises the following contentions in his appeal:

POINT I: THE CHARGE ON THE LAW GIVEN TO THE JURY WAS CONFUSING AND MISLEADING AND REQUIRES REVERSAL.

A. THE LESSER INCLUDED OFFENSES OF MURDER SHOULD NOT HAVE BEEN CHARGED.

B. THE CHARGE ON AGGRAVATED ASSAULT WAS INCORRECT AND CONSTITUTES PLAIN ERROR.

C. THE CHARGE ON ACCOMPLICE LIABILITY WAS INCORRECT AND CONSTITUTES PLAIN ERROR.

D. THE MENTAL STATES SHOULD NOT HAVE BEEN GIVEN TO THE JURY SINCE NO OTHER LAW WAS GIVEN.

POINT II: THE JUDGE SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR ACQUITTAL OR A NEW TRIAL.

POINT III: THE JUROR'S FAILURE TO DISCLOSE THE TRUE NATURE OF HER EMPLOYMENT REQUIRES A NEW TRIAL.

POINT IV: THE SENTENCE IMPOSED WAS EXCESSIVE AND IMPROPER AND, AS SUCH, MUST BE VACATED.

II.

Defendant first argues that the judge's instructions were flawed. Defendant contends that the judge should not have charged the lesser included offenses of murder. He asserts that the charge on aggravated assault was incorrect. Defendant further argues that the accomplice liability charge was incorrect. Finally, defendant contends that the judge erred in giving the jurors a copy of the instructions on mental states.

We reject defendant's contention that the judge erred in charging the jury on the lesser included offenses of murder. A judge may not charge the jury with regard to an included offense unless there is a rational basis to convict a defendant of the offense. N.J.S.A. 2C:1-8e. "In order to justify a lesser included offense instruction, a rational basis must exist in the evidence for the jury to acquit defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense." State v. Savage, 172 N.J. 374, 396 (2002) (citing State v. Brent, 137 N.J. 107, 113-14 (1994)).

Defendant argues that the State's theory in this case was that defendant shot and killed Smith. That may be so but evidence also was presented at trial upon which the jury could reasonably find that defendant acted as a sweeper, directing Smith towards the green car, knowing that one of the occupants of the vehicle had a weapon and would use it to shoot Smith. In our view, that evidence provided a rational basis for charges on aggravated manslaughter and reckless manslaughter.

We likewise find no merit in defendant's assertion that the judge erred in charging the jury on aggravated assault. Defendant notes that there was testimony at trial that defendant and his three associates discussed beating up Smith after Smith left the bar. However, the record shows that Smith was not beat up. Smith was shot and killed. Defendant therefore argues that the jury should have been instructed on attempt to assault rather than the completed act. We are convinced, however, that an attempt to assault charge would not have been appropriate in this case because the evidence established that Smith was actually injured in the incident.

In support of his contention that the judge erred in charging aggravated assault, defendant cites State v. Green, 318 N.J. Super. 361 (App. Div. 1999), affirmed o.b., 163 N.J. 140 (2000). In Green, defendant was charged with second-degree aggravated assault. Id. at 365. The evidence showed that the police endeavored to arrest the defendant. One officer approached the driver's side of defendant's car. Defendant put his vehicle in reverse and the officer ran after the car but the defendant drove the vehicle forward and struck the officer in the leg. Id. at 367-68. The State conceded that the evidence was insufficient to establish that the officer had sustained "serious bodily injury." Id. at 371.

The defendant in Green argued that the judge should have dismissed sua sponte the aggravated assault charge. We rejected that contention finding that the evidence was sufficient to support a finding by the jury that the defendant was guilty of attempted aggravated assault. Ibid. However, we reversed the conviction because in his instructions, the judge had not limited the jury to considering an attempt to cause serious bodily injury rather than actually causing such injury. Id. at 372.

We are convinced that defendant's reliance upon Green is misplaced. Indeed, Green is readily distinguishable. There, the evidence did not provide a rational basis to charge a completed assault and a limiting instruction was required. In this case, there was no basis in the evidence to limit the jury's consideration to a charge of attempted assault because the evidence established that Smith had been injured. Simply put, there was no evidence upon which the jury could find that Smith was merely the victim of an attempted assault.

Defendant further contends that there was insufficient evidence to support the assault charge. We disagree. We are satisfied that there was a rational basis for the charge because, if the jury accepted defendant's assertion that Joyner was the person who was carrying the weapon, it could reasonably have determined that defendant intended to harm Smith by acting as a sweeper and herding defendant to a position where he would be shot. Moreover, based on the evidence presented at trial, the jury reasonably could have determined that the State had proven beyond a reasonable doubt that defendant caused Smith to sustain "serious bodily injury," which is defined in N.J.S.A. 2C:11-1b to include bodily injury that "creates a substantial risk of death."

Defendant further contends that the judge erred in providing the jury with a copy of his instructions on the relevant mental states. The jury asked for a copy of the instructions and the judge advised the jurors that he did not have a copy of the entire charge in writing. The jurors thereupon continued their deliberations. Later that day, the jury asked the judge to repeat the portion of his charge on accomplice to murder. The jury also asked the judge to repeat the instructions on aggravated manslaughter and reckless manslaughter.

The jury was excused for the evening and the following day, the judge re-instructed the jury regarding accomplice liability, murder, aggravated manslaughter and reckless manslaughter. The judge also provided the jurors with a copy of the portion of the charge on the mental states required for conviction.

Defendant contends that the jury was confused by the instructions and, based on certain post-trial statements of one of the deliberating jurors, the jury based "everything" on the written instructions concerning the mental states. Again, we disagree.

We note that defense counsel did not object to the judge's decision to provide the jury with a copy of his instructions on the pertinent mental states. We therefore must consider whether the judge erred in doing so and whether any such error was clearly capable of producing an unjust result. R. 2:10-2.

We are satisfied that the judge did not abuse his discretion in providing the jury with a portion of the charge in writing. The record does not support defendant's assertion that the jury was confused by having a portion of the charge in writing. Moreover, the juror's statement that the jury relied upon the handout in reaching its verdict does not establish that the jurors' possession of the handout was "clearly capable or producing an unjust result." Ibid. Indeed, the handout could only have made clear to the jurors the mental states that the State was required to prove in order for the jury to find defendant guilty. In these circumstances, any reliance by the jurors upon the handout describing the mental states could not have prejudiced defendant.

III.

Defendant next argues that the judge erred in denying his motion for acquittal. Defendant first contends that there was insufficient evidence for the jury to find that he committed the crime of reckless manslaughter as an accomplice.

In reviewing the judge's decision to deny the motion for acquittal, we apply the same standard that is used by the trial judge in determining whether to grant or deny the motion. State v. Moffa, 42 N.J. 258, 263 (1964). We must view the evidence in its entirety, give the State the benefit of all favorable testimony, as well as any inferences that reasonably could be drawn from the evidence, and must affirm the denial of the motion for acquittal if a reasonable jury could find that defendant is guilty of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)).

We are satisfied that a reasonable jury could find based on the evidence presented at trial that defendant committed reckless manslaughter as either a principal or an accomplice. As we stated previously, Paige testified that defendant followed Smith up the block after Smith left the bar. Davis also testified that he observed defendant follow Smith up the street. Defendant admitted to Officer Pasternak that he followed Smith as Smith walked up the block and watched him from the other side of the street. The green car drove up the street and, according to defendant, Smith crossed the street behind the car. We are satisfied that the evidence was sufficient to allow the jury to find, beyond a reasonable doubt, that defendant recklessly brought about Smith's death and acted with an awareness of and conscious disregard of a substantial and justifiable risk that Smith would be shot and killed.

We also reject defendant's contention that a new trial was warranted here based on juror confusion. In support of this contention, defendant asserts that the verdict is inconsistent because the jury found defendant not guilty of the weapons charges and found that the crime of reckless manslaughter had not been committed by use of a firearm.

We are not convinced that the verdicts are inconsistent. The jury concluded that there was insufficient evidence to find beyond a reasonable doubt that defendant unlawfully possessed a weapon at the time of the incident. That determination can be explained in part by the fact that the weapon was never recovered. Moreover, the jury's finding that the reckless manslaughter had not been committed with a gun indicates that the jury was not convinced beyond a reasonable doubt that defendant shot Smith. But that finding is not inconsistent with the jury's determination that defendant was guilty of reckless manslaughter, a finding that could reasonably have been reached in this case, even if defendant did not shoot Smith.

Nevertheless, if the verdicts are considered to be inconsistent, that would not invalidate defendant's conviction. It is well established that a jury "may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). Here there was sufficient evidence for defendant's conviction of reckless manslaughter. Therefore, we will not speculate on whether "the verdicts resulted from jury lenity, compromise, or mistake not adversely affecting the defendant." State v. Grey, 147 N.J. 4, 11 (1996)(citing United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), and Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932)).

We also are satisfied that statements by certain jurors regarding the deliberations do not warrant a new trial. The record shows that one juror contacted defense counsel and stated that she had been confused by the jury charge. Another juror contacted the vicinage jury manager and advised that she was upset by the verdict and believed that the judge's instructions should have been provided to the jury in writing. The second juror phoned the trial judge and advised that "in her heart" she did not believe defendant was guilty.

The judge interviewed the second juror in the presence of counsel. The juror admitted that the verdict had been unanimous. The juror stated that after the case ended, she spoke with her spouse, who had gone to law school but had not passed the bar exam. The juror's spouse purportedly explained the concept of reckless manslaughter. The juror also stated that she had not been threatened, no outside information had been brought into the deliberations and her concerns did not include "race," "religion, or creed, or anything of that type."

We are not convinced that the statements of these jurors provide a basis for a new trial. We are in substantial agreement with the reasoning of the trial judge, who stated the following in denying the motion:

A juror who comes forward later on and says he or she was confused does not invalidate a verdict. The only way you can invalidate a verdict seems to me, based upon law we have here, to show that the verdict was tainted, tainted by some outside influence by somebody bringing in facts and law not testified to or bringing in things that we all abhor, appealing to [the] jury's prejudice for religion, . . . race or creed and that wasn't done here . . . . Based upon what I have before me, based upon testimony made before me and the comments made to you I am not going to invalidate this verdict based upon what you contend is confusion.

IV.

We turn next to defendant's contention that he was denied a fair trial because juror #13 did not disclose "the true nature of her employment" during voir dire. Again, we disagree.

Here, during jury selection, the juror was asked to state what type of work she does and she replied that she is an interior designer. The juror was not asked where she works. Prior to deliberations, the juror was selected as an alternate. Subsequently, the assistant prosecutor advised the trial judge that, after the trial, he was informed that the juror worked at a Home Depot store where his father is employed. During the trial, the juror was not aware that the worker at the Home Depot was related to the assistant prosecutor.

We are convinced that a new trial is not warranted in these circumstances. The juror did not deliberately fail to disclose her place of employment. The record shows that the juror was not asked where she works. This case therefore is distinguishable from In re Kozlov, 79 N.J. 232 (1979), where the juror had been asked a specific question and in responding to that inquiry, deliberately failed to disclose potentially prejudicial information.

Moreover, there is nothing in the record to show that the juror was aware that the assistant prosecutor's father worked at the Home Depot store where she works. The juror was selected as an alternate and she did not participate in the deliberations. There is no evidence that the alternate juror discussed the case with her fellow jurors while the case was in progress. For these reasons, we are satisfied that defendant was not deprived of his right to a fair trial and a new trial is not required.

V.

We turn to defendant's contention that his sentence is excessive. Here, the judge granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The judge took note of the fact that in his eight years as an adult, defendant had been arrested twenty-seven times, convicted of nine disorderly persons offenses and convicted of four indictable offenses, including endangering the welfare of a child and possession of CDS with intent to distribute.

The judge found aggravating factors under N.J.S.A. 2C:44-1a(3)(risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6)(extent of defendant's prior record and the serious nature of those offenses); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. He therefore determined that the aggravating factors outweighed the mitigating factors. The judge determined that, in the circumstances, it was appropriate to impose an extended term pursuant to N.J.S.A. 2C:44-3a.

We are convinced that there is ample support in the record for the judge's findings and the extended term was appropriately imposed in this case. In our view, the sentence is not manifestly excessive or unduly punitive, is not an abuse of the judge's sentencing discretion, and does 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).

In arguing that his sentence is excessive, defendant compares his sentence to the sentences imposed upon his co-defendants. However, a sentence that is "not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." State v. Roach, 146 N.J. 208, 232 (1996)(quoting State v. Hicks, 54 N.J. 390, 391 (1969)). A sentence disparity is justifiable unless "the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." Id. at 233. Here, the record does not contain any sufficient evidence to establish that the co-defendants were "substantially similar" to defendant in respect of "all relevant sentencing criteria." Ibid. We therefore reject defendant's assertion that his sentence is improper because his co-defendants received different sentences.

 
We have considered the other contentions raised by defendant on this appeal and find those contentions not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-6745-03T5

 

May 23, 2006