STATE OF NEW JERSEY v. IBN EL-AMIN PASHA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1590-05T41590-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IBN EL-AMIN PASHA,

Defendant-Appellant.

_________________________________

 

Submitted May 7, 2008 - Decided

Before Judges Wefing, Parker and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, No. 04-03-0255.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated

Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Nancy A. Hulett,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of three counts of terroristic threats, a crime of the third degree, N.J.S.A. 2C:12-3; two counts of false imprisonment, a disorderly persons offense, N.J.S.A. 2C:13-3, as a lesser-included offense of kidnapping; two counts of stalking, a crime of the fourth degree, N.J.S.A. 2C:12-10; one count of possession of a weapon for an unlawful purpose, a crime of the second degree, N.J.S.A. 2C:39-4(a); three counts of criminal mischief, a crime of the third degree, N.J.S.A. 2C:17-3(a)(1); one count of burglary, a crime of the third degree, N.J.S.A. 2C:18-2; one count of theft, a crime of the third degree, N.J.S.A. 2C:20-3; and two counts of murder, N.J.S.A. 2C:11-3(a)(1), (2). The trial court sentenced defendant to an aggregate term of 168 years in prison. The sentence included two consecutive life terms for the murder convictions, each subject to the eighty-five percent parole disqualifier of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence but remand for entry of a corrected judgment of conviction.

The murder victims were Shani Jones Baraka, sister of defendant's estranged wife, Wanda Wilson, and Rayshon Holmes, a friend of Baraka's. Wilson was the victim of the great bulk of the remaining counts.

Defendant argued he would be unfairly prejudiced if all the counts were tried together. To avoid the possibility of such undue prejudice, the trial court granted his motion to sever the counts relating to the homicides, which included charges of burglary and theft at the time of the killings. It directed that the remaining counts, which dealt primarily with the increasingly acrimonious relationship between defendant and Wilson, be tried first. This first jury found defendant guilty of terroristic threats, false imprisonment, and stalking. It found defendant not guilty of three counts of kidnapping and two counts of aggravated sexual assault. It was unable to reach a verdict on three counts of criminal mischief, one count of terroristic threats, aggravated assault, and possession of a weapon for an unlawful purpose. Those counts were then tried with the four counts that had initially been severed. The count of aggravated assault was dismissed, and the original charge of robbery was amended to burglary while armed. The second jury found defendant guilty.

Wilson met defendant through mutual friends. At the time, she held a position as an executive administrator at a bank in New York City. She earned a comfortable salary and owned a home in Piscataway that she shared with her half-sister, Shani Jones Baraka. Defendant was unemployed and without a permanent residence. Wilson was nonetheless attracted to him. The two began to date, and she lent him funds to start a business. He moved into her home, and they were married in February 2000.

Trouble developed in the marriage, however, due to defendant's habit of pursuing other women. By February 2003, the two were separated. Wilson, however, continued to provide money to defendant even in the face of several incidents in which defendant showed up at Wilson's home and attacked and threatened her. We do not consider it necessary to set forth all the incidents to which Wilson testified, nor the particular details. A summary will suffice for purposes of this opinion.

On April 27, 2003, defendant came to Wilson's home, demanding to be admitted. She would not let him in and eventually summoned the police. Defendant was no longer there by the time the police arrived. One of the officers who responded advised Wilson that she should obtain a restraining order against defendant. Although Wilson did obtain such an order, it was never served upon him.

In June 2003 Wilson met James Hill, Jr., and formed a relationship with him. Defendant came to the house and threatened Wilson, holding a gun to her head. The following day, Wilson left her house and went to stay with Hill. She returned to the house on June 17, 2003, with a cousin and a friend and instructed the friend how to care for the pool that was on the property. She gave him keys to her car so that he could use it to get back and forth from his apartment in Newark to the home in Piscataway. She then returned to Hill's home.

The following day, Wilson's friend called her to tell her that Wilson's car had been set afire. In addition, the car's windows had been broken and its tires slashed. Defendant called Wilson the day after, asking if she was upset about her car. He said he had destroyed the car because he had overheard her giving her friend instructions on caring for the pool and wanted to deprive him of a way of getting back and forth.

Later in the month, she returned to the house and found that someone had entered, triggering the security alarm. Pictures of Wilson and Hill were missing. In early July, her pool was vandalized on several occasions and the water contaminated with motor oil.

In addition, defendant continued to contact Wilson on her cell phone and at work, at times calling up to twenty times a day. She arranged to have a security escort at work, while entering and leaving the building.

On August 8, 2003, Wilson and Hill went to Las Vegas. The night before their departure, Wilson gave Hill's seventeen-year-old son a key to the house and asked him to watch over the dog while they were gone. While Wilson was showing the house to the boy, he saw two leather motorcycle jackets in a closet. Wilson did not like her jacket and the boy asked if he could have it; she said he could wear it when the cold weather came.

Hill's son came to the house on August 12, together with his girlfriend and nine-year-old cousin. All of the lights on the second floor of the house were on. The older boy and his girlfriend went to check upstairs, and the young cousin went to check on the dog in the basement. He came upstairs screaming that were bodies down there. His older cousin called his father in Las Vegas, and Wilson called the police. They responded to the house and found the bodies of Baraka and Holmes, both of whom had been shot to death.

The police sought to question defendant but were unable to locate him at first. Defendant was staying with a friend in North Carolina. On learning that the police were looking for him, he asked his friend to drive him to New Jersey so that he could turn himself in. His friend told police that defendant had been with him the entire weekend of the murders. Subsequent investigation, however, produced several witnesses who could place defendant in the area at the time of the murders.

Holmes had owned a Toyota Land Cruiser, but the vehicle was missing at her death. The vehicle was equipped with an EZ-Pass transponder which tracked the vehicle through New Jersey down to the Fort McHenry Tunnel in Maryland. It was eventually discovered about four months later in Virginia, at a spot very close to a Greyhound Bus Terminal. The bus company records showed that a one-way ticket to Winston-Salem had been purchased by "Rob Carpenter" on August 12, 2003. The friend with whom defendant had been staying in North Carolina and who drove him back to New Jersey was Robert Carpenter.

Based upon that information, the police interviewed Carpenter again, and he eventually admitted that he had spent that weekend with his girlfriend and not defendant. The police asked if defendant had left anything behind in Carpenter's home. Carpenter showed them two motorcycle jackets. Wilson identified them as the jackets which had been in her closet which Hill's son had asked about.

Carpenter also said defendant had given him several pieces of jewelry to pawn. The police recovered the items, and Wilson identified them as belonging to her sister and to herself.

Defendant raises the following issues on appeal:

POINT I THE DEFENDANT'S CONVICTIONS FOR TERRORISTIC THREAT[S] ON COUNTS ONE AND FOUR, FOR FALSE IMPRISONMENT ON COUNTS TWO AND TEN, AND FOR STALKING ON COUNTS THREE AND SIX SHOULD BE REVERSED BECAUSE THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY INSTRUCTIONS (NOT RAISED BELOW)

(A)

THE TRIAL COURT FAILED TO PROVIDE ADEQUATE GUIDANCE TO THE JURY ON HOW TO ASSESS THE ISSUANCE OF A TEMPORARY DOMESTIC RESTRAINING ORDER AGAINST THE DEFENDANT TO THE FACTS OF THE CRIMINAL CASE (NOT RAISED BELOW)

(B)

THE DEFENDANT'S CONVICTIONS FOR STALKING ON COUNTS THREE AND SIX SHOULD BE REVERSED BECAUSE THE TRIAL COURT FAILED TO SPECIFICALLY INSTRUCT THE JURY THAT IT COULD NOT CONSIDER THE DEFENDANT'S CONDUCT IN NEW YORK IN ASSESSING HIS GUILT (NOT RAISED BELOW)

POINT II THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (RAISED IN PART BELOW)

(A)

THE PROSECUTOR IMPROPERLY MALIGNED THE DEFENDANT AND SUGGESTED THAT THE JURY HAD A SOCIETAL DUTY TO CONVICT

(B)

THE PROSECUTOR IMPROPERLY INJECTED THE CONCEPT OF THE DEFENDANT'S "INNOCENCE" IN HIS SUMMATION (NOT RAISED BELOW)

(C)

THE PROSECUTOR'S ASSERTION THAT WANDA WILSON WAS A "BATTERED WOMAN" WAS IMPROPER BECAUSE IT REQUIRED SUPPORTING EXPERT TESTIMONY (NOT RAISED BELOW)

POINT III THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE WANDA WILSON'S TESTIMONY, PREVIOUSLY RULED INADMISSIBLE, PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL, AND THE PROSECUTOR'S INABILITY TO CONTROL MS. WILSON AND THE TRIAL COURT'S INADEQUATE RESPONSES FAILED TO CURE THE PREJUDICE

POINT IV THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL BECAUSE WANDA WILSON'S TESTIMONY THAT THE DEFENDANT ADMITTED COMMITTING THE MURDERS VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO DISCOVERY AND RENDERED THE TRIAL FUNDAMENTALLY UNFAIR

POINT V THE DEFENDANT'S DUE PROCESS RIGHT TO A RELIABLE IDENTIFICATION WAS VIOLATED BY

THE CONDUCT OF DETECTIVE MANCO, AND THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT OR IN THE ALTERNATIVE TO EXCLUDE THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS BY SCOTT SACHS

POINT VI THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE PROSECUTOR TO ADMIT AS A PRIOR INCONSISTENT STATEMENT THE GRAND JURY TESTIMONY OF ROBERT CARPENTER BECAUSE THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE GRAND JURY TESTIMONY WAS "RELIABLE" OR THAT THE PROSECUTOR WAS SURPRISED BY MR. CARPENTER'S TRIAL TESTIMONY

POINT VII THE AGGREGATE 168 YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF DISCRETION, AND VIOLATED STATE V. NATALE

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE CUSTODIAL TERMS ON THE DEFENDANT'S CONVICTIONS FOR MURDER ON COUNTS NINETEEN AND TWENTY THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM OF 30 YEARS

(B)

THE DEFENDANT'S CONVICTIONS FOR MURDER ON COUNTS NINETEEN AND TWENTY SHOULD HAVE BEEN MERGED

(C)

THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE DEFENDANT'S CONVICTIONS CONSECUTIVE TO EACH OTHER.

I

(A)

Defendant's first two points on appeal raise issues with respect to the first trial, at which he was convicted, as we have noted, of terroristic threats, false imprisonment, and stalking. He contends that one portion of the trial court's charge with respect to the evidence the jury had heard about Ms. Wilson having obtained a restraining order against defendant constituted reversible error. We disagree.

We note first that defendant made no objection at the time of trial to the court's charge on this issue. He must thus establish that the court's charge constituted plain error, that is, that it was "clearly capable of producing an unjust result." R. 2:10-2.

Defendant contends that the charge was erroneous in two respects: 1) because it failed to advise the jury that a complainant may obtain such a restraining order based upon the preponderance of the evidence and need not establish entitlement beyond a reasonable doubt and 2) because it failed to advise the jury that evidence may be received in a domestic violence hearing that would not be admissible in a criminal trial. Defendant presents no authority for his position that such an instruction is required and we are not aware of any.

He complains that the court's charge did not comply with the principles enunciated in State v. Cofield, 127 N.J. 328 (1992), to guide a court in instructing a jury on the proper use of evidence of prior bad acts under N.J.R.E. 404(b).

The court instructed the jury in the following manner:

[S]ometimes evidence is allowed for a very limited purpose; and in this particular case there has been certain types of evidence that has been admitted for a limited purpose and can only be considered by you for that limited purpose.

In this case, for example, you have heard evidence that marital problems existed between Wanda Wilson and the defendant and also that Mrs. Wilson had signed complaints and sought a restraining order against Mr. Pasha. You should understand that this evidence was admitted only for limited purposes. Those limited purposes were, one, so that it would help you determine the credibility of Mrs. Wilson and, two, that it would help you determine the state of mind of the defendant at the relevant time frames set forth in the indictment.

You should understand that the mere fact that complaints or a restraining order were signed naming Mr. Pasha is not evidence of his guilt in this case in this indictment and should not be considered as evidence of guilt during your deliberations. Similarly, your feelings, if you have any, about whether Mrs. Wilson or Mr. Pasha were good or bad spouses should have no influence in your deliberations in this case. This is not a matrimonial case. This is a case involving certain very specific criminal charges and, therefore, that's what you have to consider, whether the State has proven the guilt of the defendant on these criminal charges beyond a reasonable doubt.

Again, this information that was supplied about the marital difficulties and the prior complaints and things can be considered by you in determining the credibility of Mrs. Wilson and can also be considered by you in determining the state of mind of the defendant.

But, beyond that, you should not consider this evidence for any other purpose.

We consider the court's charge entirely adequate in the context of this case. It clearly told the jury the limited use that it could make of this evidence and that it could not consider the evidence as substantive proof of defendant's guilt of the charges under consideration. We note, moreover, that the jury which heard this charge acquitted defendant of a number of serious charges, including kidnapping and aggravated sexual assault. Clearly, the jury was not unfairly inflamed against this defendant.

(B)

Defendant contends, again as plain error, that the trial court's charge with respect to the charge of stalking was deficient because it did not instruct the jury that it could not convict defendant in New Jersey for conduct which occurred in New York. Defendant's argument is based upon testimony that Ms. Wilson worked in New York City and that defendant made repeated phone calls to her at work and that she found it necessary to have a security guard escort her to and from her office building.

It is settled, both under common law and the criminal code, that "the State is vested with the power to prosecute and punish crimes that occur only within its territorial borders." State v. Denofa, 187 N.J. 24, 36 (2006). In discussing the counts of stalking, the trial court told the jury in pertinent part:

The indictment also charges the defendant with the crime of stalking. That count of the indictment charges the defendant with stalking between March 9th and June 15th, 2003.

The statute upon which the stalking charge is based reads that a person is guilty of stalking if he purposely or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family.

So, in order for you to find the defendant guilty of stalking the State must prove each of the following elements beyond a reasonable doubt.

That the defendant purposely or knowingly engaged in a course of conduct in the State of New Jersey that was directed at Wanda Wilson; and number two, that the defendant's conduct was such that it would cause a reasonable person to fear bodily injury or death to herself or to a member of her immediate family.

* * *

So, for this count the State must also prove beyond a reasonable doubt that the course of conduct took place in the State of New Jersey. Communication means any form of communication, including but not limited to any verbal or any written communication by wire, by pager, by cell phone, by telephone, by computer, by fax machine as well as any communication by any sign or gesture. Any form of communication will satisfy the element of the statute if the other elements are present.

* * *

Again, so, for stalking, the State has to prove beyond a reasonable doubt that the defendant purposely or knowingly engaged in a course of conduct in the State of New Jersey that was directed at Wanda Wilson and that his conduct was such that it would cause a reasonable person to fear bodily injury or death to herself or to a member of her immediate family.

Defendant considers the charge fatally deficient for not specifically telling the jury that it could not base its verdict on either of these counts upon conduct that occurred in New York. We disagree.

In Denofa, supra, the Court held that "territorial jurisdiction is an offense element and must be decided by the jury, even without a request from the defendant, provided the record clearly indicates a factual dispute concerning where the crime occurred." 187 N.J. at 29.

The two counts of stalking at issue alleged conduct between March 9, 2003, and June 14 and 15, 2003, and clearly involved incidents in New Jersey. We have carefully reviewed Ms. Wilson's testimony in light of defendant's argument. The record does not contain a clear factual dispute as to where the challenged conduct occurred, and there was thus no need to submit that question to the jury. The trial court's charge, clearly telling the jury that its decision had to be based only on conduct within New Jersey, was entirely adequate.

(C)

Defendant's second argument with respect to the first trial revolves around certain remarks contained within the prosecutor's closing argument. "[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). They are, moreover, "afforded considerable leeway" in their remarks. State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Williams, 113 N.J. 393, 447 (1988)). They, "as representatives of the State, are compelled to further the goals of our criminal justice system." Williams, supra, 113 N.J. at 447. They may not, however, engage in unfair tactics, unfairly disparage the defense, or try to inflame the jury against a defendant. State v. Frost, supra, 158 N.J. at 84-86; State v. Acker, 265 N.J. Super. 351, 356-58 (App. Div. 1993). A conviction will not be reversed because a prosecutor overstepped the bounds in summation "unless the conduct was so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987).

The prosecutor ended his summation with the following remarks.

[Defendant] suggests in his letters and his Skytell messages that he just couldn't control his emotions because he loved her so much. That kind of self absorption comes from someone who loves only themselves. He wanted to dominate her. She didn't want to dominate and control him. She wanted to help him. She wanted to help him in business. She wanted to help him in life. She gave him an opportunity. She gave him a chance. He was the one, when he was losing that who wanted to dominate and control her for his own selfish purposes.

But people don't own people in the United States of America, not in the year 2005. His crimes were cowardly sneak attacks against a woman. Ibn El-Amin Pasha is a dangerous man who has committed serious crimes. He deserves to be punished and only you can control whether he, in fact, will be convicted and punished. Thank you.

Defense counsel objected to the statement that the jury's job was to punish defendant, and the trial court agreed to give a curative instruction. At the end of its charge, which did not include such a curative instruction, defense counsel reminded the trial court. In response the trial court gave the following instruction to the jury.

The other thing I wanted to mention was that there was some mention of the issue of punishment in [the prosecutor's] closing arguments. You should really disregard the question of punishment or not be concerned with the question of punishment. Under our law it's your responsibility to determine whether or not the State has proven the guilt of defendant of any of the crimes charged beyond a reasonable doubt. It is the responsibility of the Court, if someone is convicted, to determine the appropriate sentence or punishment. So, it is not a jury's responsibility to in any way consider the issue of punishment during its deliberations.

Again, your job is simply to consider all of the evidence that was presented and to determine whether the State has proven the defendant guilty of the crimes charged beyond a reasonable doubt.

In our judgment, this instruction was entirely adequate to cure the prosecutor's improper reference to punishing defendant. It focused the jury on the improper remark, told the jury why it was improper and stressed that its only responsibility was to decide whether the State had proven defendant guilty beyond a reasonable doubt.

At another point in his summation, the prosecutor stated:

So, was Wanda telling you the truth about what happened to her during one terrible six-month period in 2003 or did she make the whole thing up? You saw her testify. Did she appear to you to be a liar or a battered woman whose spirit had been crushed by a campaign of terror against her body, her mind and her property?

What about Pasha, is he an innocent man or a man obsessed with a lifestyle and a woman slipping out of his grasp?

Defense counsel made no objection to these remarks at the time but now contends they were improper in two respects: the reference to "innocent man" and the reference to Ms. Wilson as a "battered woman." The first he contends had the capacity to mislead the jury because it was the jury's role to decide whether the State had proven beyond a reasonable doubt that defendant committed the charged offenses, not whether he was innocent. State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003) (noting that "[t]he injection of the concept of innocence . . . may tend to reduce the State's burden of proof . . . ."). We do not perceive a realistic possibility that this one word in the prosecutor's summation could have misled the jury when the trial court carefully laid out throughout its charge the State's obligation to prove these charges beyond a reasonable doubt.

We also reject defendant's assertion that the reference to a "battered woman" was improper because the State had not presented any expert testimony on battered women's syndrome. State v. B.H., 183 N.J. 171 (2005). In our judgment, no such expert testimony was necessary in the context of this case. We think the prosecutor's comments were a fair response to the theme of defense counsel's summation, that Ms. Wilson sought to control and dominate defendant.

Finally, the fact that the jury acquitted defendant of so many of the most serious charges is evidence that it was not unfairly prejudiced against defendant by the prosecution's closing remarks.

II

Defendant's remaining arguments revolve around his second trial, at which he was found guilty of four counts of criminal mischief, possession of a weapon for an unlawful purpose, terroristic threats, burglary while armed, theft, and two counts of murder.

(A)

Defendant first complains about portions of Ms. Wilson's testimony and what he characterizes as her continued references to items the trial court had previously ruled inadmissible. He contends that the response of the trial court, which for the most part consisted of sustaining objections to portions of her testimony, continually reminding the witness to confine her remarks to the question asked, and giving a curative instruction as part of its overall charge, was inadequate. Having reviewed this testimony, we do not agree.

Defendant's specific complaints involve her testimony that she had suffered a miscarriage following an attack by defendant, that she had obtained a restraining order against defendant, her reference to his having posed in a magazine for gay men, and her reference to his having tested positive for the HIV virus. We note that the transcript reference upon which defendant relies does not support his contention that the trial court had ruled all these areas inadmissible. Rather, the trial court instructed the prosecutor not to mention them in his opening remarks, an instruction that was followed.

With respect to Ms. Wilson having suffered a miscarriage, it was defense counsel who broached that subject in his cross-examination and who sought to use her responses to challenge her credibility in the eyes of the jury.

He then questioned her about how she and defendant would regularly reconcile after their quarrels. She gave the following response.

He would apologize. He would write numerous letters, like was just shown, every day. He would explain what happened. He would give me his side of the story. Majority of the time I would believe him and once I believed him I accepted him back. The only time we had a problem was when I found out that he was HIV positive and did not tell me until five months later. That was the only time we had a problem.

When defense counsel objected, the trial court told the jury to disregard the remark and the witness not to volunteer information.

Later, defense counsel asked her if the two were living together in June, 2002. She responded they were having problems then: "Because, like I said, I found out in March 2002 that he was sick." Defendant made no objection to this remark.

Defense counsel also questioned her about the restraining order and also why she had waited approximately two weeks to tell the police defendant had threatened her with a gun. She responded:

I had no control because he had blew up my car, he had sliced my pool, he posed for a gay magazine. Things were totally out of hand and there was a lot of things that came out that I knew nothing about. Yes, that is exactly what happened.

There was no immediate objection.

At the conclusion of her testimony, the trial court gave a general limiting instruction about the proper use of her testimony that she had obtained a restraining order against defendant. It told the jury:

The mere fact that complaints or a restraining order were sought against the defendant is not evidence of his guilt of the crimes contained in the indictment and should not be considered as such during your deliberations. Similarly, and most importantly, your feelings, if any, about whether the defendant or Miss Wilson was a good or a bad spouse should not influence your verdict in this case.

The court gave another such limiting instruction to the jury as part of its final charge.

In our judgment, nothing within Ms. Wilson's testimony, and the manner in which the trial court handled the subject, would warrant a reversal of defendant's convictions.

The decision on whether inadmissible evidence may be cured by a cautionary or limiting instruction or instead requires the more severe response of a mistrial "is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting."

[State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.) (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)), certif. denied, 174 N.J. 41 (2002).]

In the matter before us, there was no abuse of that discretion by this experienced trial court judge.

(B)

Defendant's next argument involves another portion of Ms. Wilson's testimony. She spoke with defendant after she had learned of the murders. The prosecutor asked about this conversation and she responded:

I paged [defendant] and he called me back and I asked him why did he--why did he do that, and he said Wan, I didn't do it, and I said Jock, if you didn't do it why are you running, and he said Wan, you know I would never do anything like that, and I said well, Jock, if you didn't do it you should turn yourself in, and I hung up, and he called me back and he said to me you went to Las Vegas, so you just going to ride off into the sunset and leave me out here like this. He says you made me do it, it's your fault.

Defendant immediately objected and moved for a mistrial, complaining that he had never been advised that defendant had made such a confession to her. The trial court excused the jury, recessed the trial over the weekend and entertained the argument of counsel. From that argument, it was apparent that defense counsel had been advised of the bulk of this conversation and of the statement, "[I]t's your fault," but not of the statement "[Y]ou made me do it." It was also apparent that Ms. Wilson had never told the prosecutor of this latter statement and that he was as equally surprised by the statement as defense counsel.

Ultimately, the trial court denied defendant's motion for a mistrial and denied his request to strike the testimony. The trial court noted that this was not a case of a discovery violation because the prosecutor was not aware that Ms. Wilson would testify to this effect until she took the stand and did so. The trial court also noted that defense counsel was unable to state how his trial strategy would have changed if he had been alerted to this statement. That strategy consisted in large measure upon vigorous cross-examination of Ms. Wilson who, in her testimony, often went beyond earlier statements she had made. In that sense, this provided another avenue for defendant to argue to the jury that she was a vindictive, controlling person who was more focused on seeing defendant convicted than giving an entirely truthful account of events.

At the conclusion of her testimony, and again in its general charge, the trial court gave the jury careful instructions on the use of inconsistent statements and the necessity to weigh oral statements with caution. State v. Kociolek, 23 N.J. 400, 421 (1957).

A trial court's decision whether to grant or deny a motion for a mistrial rests in its sound discretion. State v. Winter, 96 N.J. 640, 646-47 (1984). A trial court's decision to deny a motion for a mistrial should not be disturbed on appeal unless there is a clear showing of an abuse of that discretion or unless a manifest injustice would result. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Neither is present in the instant matter.

(C)

Defendant next challenges the trial court's refusal to suppress the identification testimony of a witness who placed defendant in the vicinity of Ms. Wilson's home around the time of the murders. Scott Sachs testified that in the early evening of August 11, 2003, he was sitting on the front steps of his house. He said it was a warm evening, and he was dressed in shorts and a tank top. He noticed a man who, despite the weather, was dressed in jeans, work boots, a hooded sweatshirt, a quilted vest, a hat and a back pack. The man walked down the street and into a park directly across from Sachs's house and sat for a while at a picnic table. There were children playing nearby. Sachs kept him under observation because he seemed out of place. Sachs described the man as black, with gold-rimmed glasses, a close-shaved beard and a moustache.

A few days later, Sachs read a newspaper article which contained a photograph of someone from the prosecutor's office holding a picture of defendant. Sachs immediately recognized the picture as being of the man he had observed in the park. He contacted the prosecutor's office. At trial, he again identified defendant as that man.

Defendant's argument rests upon the fact that nearly two months after he contacted the prosecutor's office, Sachs received a telephone call, asking him to come to Piscataway police headquarters. He did so and repeated to several Piscataway officers what he had seen that evening. Officer Manco then showed Sachs a single photograph, that of defendant taken when he had turned himself in. Sachs immediately identified defendant as the man he had seen in the park.

A pre-trial hearing was conducted to determine the admissibility of this identification testimony. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The trial court concluded that Sachs's identification was sufficiently reliable and was not tainted by Manco's having shown a single booking photograph, in violation of the Attorney General's guidelines for photo identification.

A defendant must establish by a preponderance of the evidence that a pretrial identification procedure was so suggestive that it created a substantial likelihood of misidentification. State v. King, 390 N.J. Super. 344, 360 (App. Div.), certif. denied, 190 N.J. 394 (2007). A trial court's decisions with respect to suggestiveness and reliability will be upheld if they are reasonably based on the evidence as a whole. State v. Bono, 128 N.J. Super. 254, 262 (App. Div.), certif. denied, 65 N.J. 572 (1974). In weighing the alleged suggestive nature of an identification against its reliability, the court must consider the totality of the circumstances presented. State v. Madison, 109 N.J. 223, 233 (1988).

Here, we consider the trial court's determination with respect to the witness Sachs to be clearly correct. That identification rested upon his spontaneous recognition of the photograph displayed in the newspaper article as a photograph of the individual he had seen in the park a few days previously. Further, Sachs had ample opportunity to observe the man and testified as to why he kept the man under his scrutiny. There was no basis for the trial court to have excluded this testimony.

Defendant also challenges the testimony of a neighbor, Christina Hensal, who told police that she had seen a green BMW parked in the area. (There was earlier testimony that Ms. Wilson had leased a green BMW for defendant.) Officer Manco showed a photo array to Ms. Hensal, but she was unable to identify anyone. He then specifically pointed out defendant's picture in the array and asked if she recognized him. Again, she said no.

Clearly, the procedure was improper. It did not, however, warrant the relief defendant sought, dismissal of the indictment. Defendant was not prejudiced by the procedure because Ms. Hensal was never able to identify defendant as belonging to the green BMW or to say she had observed him the day of the murders.

(D)

Rob Carpenter, with whom defendant had been staying in North Carolina, testified both before the grand jury and at defendant's trial. Carpenter told the grand jury that defendant had visited him in North Carolina in early August but returned to New Jersey on August 8 and was in New Jersey on August 9, 10 and 11 and returned to North Carolina on August 12. When he returned, he gave Carpenter several pieces of women's jewelry to pawn. He said he knew defendant owned a gun and that it looked like a .357 revolver.

At trial, Carpenter said he was unsure of the dates when defendant returned to New Jersey and was certain he was in North Carolina over August 9, 10 and 11 because defendant watched Carpenter's son while Carpenter was with his girlfriend. Over defendant's vigorous objection, the trial court permitted the prosecutor to confront Carpenter with his grand jury testimony. Subsequently, that testimony was admitted into evidence.

Despite defendant's argument to the contrary, there was no error on the part of the trial court. The trial court's rulings were in full accord with N.J.R.E. 803(a)(1)(B).

(E)

Defendant also challenges his sentence as manifestly excessive and not in accord with State v. Natale, 184 N.J. 458 (2005). To the extent defendant's argument is that Natale precluded the trial court from imposing a base sentence in excess of thirty years for the murder convictions, it is mistaken. State v. Abdullah, 184 N.J. 497, 507 (2005), clearly held that there is no presumptive sentence for murder, that the "standard range for murder is a sentence between thirty years and life imprisonment." We see no merit to his assertion that the trial court erred in imposing consecutive sentences for the various offenses or that the trial court should have merged the convictions for murdering Ms. Wilson's sister Shani Baraka and her friend Rayshon Holmes. State v. Carey, 168 N.J. 413, 428 (2001) ("Crimes involving multiple deaths of victims . . . represent especially suitable circumstances for the imposition of consecutive sentences.").

III

Defendant has filed a supplemental brief in which he raises the following additional arguments.

POINT I THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN RULING THAT COUNTS SEVEN, NINE, ELEVEN, TWELVE, THIRTEEN, FOURTEEN AND FIFTEEN BE CONSOLIDATED FOR TRIAL

POINT II THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT'S MOTION FOR A CROSS-RACIAL IDENTIFICATION CHARGE PURSUANT TO STATE V. CROMEDY

(A)

The trial court originally directed that those counts dealing with defendant's alleged violent acts toward Ms. Wilson be severed for trial from those counts dealing with the murders. When, as we noted, the jury was unable to reach a verdict on certain of those counts at the first trial, the trial court joined them with the trial of the murder-related counts. Defendant argues this was reversible error because it improperly put before the jury evidence of prior bad acts. N.J.R.E. 404(b).

The test for improper joinder of offenses is essentially an evidential one. If evidence of the conduct underlying the counts for which severance is sought would be admissible in the other proceeding, severance is unnecessary because a defendant would suffer no undue prejudice as a result of the joinder. State v. Pitts, 116 N.J. 580, 602-03 (1989).

Applying that test, we see no error. The trial court issued its first ruling in large part because, as it noted, it was not certain of the scope of Ms. Wilson's testimony and what it would encompass. Having presided at the first trial, this element of uncertainty was removed by the time of the second trial.

There is a four-prong test to measure the admissibility of evidence of prior bad acts: it must be relevant to a material fact, it must be reasonably close in time to the charged offense and similar in kind, it must be established by clear and convincing evidence, and its apparent prejudice should not outweigh it probative effect. State v. Cofield, supra, 127 N.J. at 338. The evidence in question met all four prongs.

The evidence concerned acts that were reasonably close in time to the time of the killings and similar in their attempt to retaliate against Ms. Wilson. Finally, the trial court gave an appropriate limiting instruction to the jury on the proper use of this evidence during the course of its deliberations.

We are also of the view that the testimony was clearly admissible because it sought to establish defendant's motive: his jealousy and desire to retaliate against Ms. Wilson because of the break-up of their marriage. Evidence such as that presented here "may be admitted to prove jealousy when it is probative of a genuine issue in the case." State v. Nance, 148 N.J. 376, 388 (1997).

(B)

Similarly, we reject defendant's argument that the trial court erred when it refused to give a charge on cross-racial identification when it dealt with defendant's identification by the witness Sachs, who is Caucasian. In State v. Cromedy, the Supreme Court recognized the "widely held commonsense view that members of one race have greater difficulty in accurately identifying members of a different race." 158 N.J. 112, 133 (1999) (quoting United States v. Telfaire, 469 F.2d 552, 559 (D.C. Cir. 1972)). The Court held that a cross-racial identification charge "should be given only when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Id. at 132.

The Model Charge on identification tells the jury that it may consider whether the fact that the identifying witness and the defendant are of different races had an impact on the accuracy of the identification and that people may have greater difficulty identifying people of different races. Model Jury Charge (Criminal), "Identification: Out-of-Court Identification Only" (2007). Here, the trial court told the jury, as part of its overall charge on identification that it "should consider whether the fact that a person was of a different race than Scott Sachs influenced his ability to make an accurate identification." Under the circumstances of this case, there was no need for the trial court to include anything further within its instruction.

IV

Finally, defendant has submitted yet another supplemental brief in which he raises one more contention--that the trial court erred in not charging the jury on aggravated manslaughter and manslaughter as lesser-included offenses of murder.

We note that defendant agrees that defendant's attorney made a strategic election not to request a charge on these lesser-included offenses but argues that the trial court had an obligation to charge them nonetheless. We disagree.

In State v. Jenkins, 178 N.J. 347, 363 (2004), the Court summarized the distinction between serious bodily injury murder (SBI murder), under N.J.S.A. 2C:11-3(a)(1) and (2), and manslaughter.

To be guilty of SBI murder, the defendant must have knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was "highly probable" that death would result. In aggravated manslaughter, by contrast, the defendant must have caused death with an "awareness and conscious disregard of the probability of death." If, instead, the defendant disregarded only a "possibility" of death, the result is reckless manslaughter.

[178 N.J. at 363 (citing State v. Breakiron, 108 N.J. 591, 605 (1987); State v. Pearson, 318 N.J. Super. 123, 136 (App. Div. 1999)).]

Here, Baraka and Holmes were both struck by hollow-point bullets fired from a large-caliber weapon. Baraka was struck in the neck, her breast and her arm, and Holmes was struck in her neck and her back. One cannot inflict such injuries without knowing that it is "highly probable" that death will result. Accordingly, there was no basis in the record which would have supported a charge on manslaughter.

V

Defendant's convictions and sentence are affirmed for the reasons we have stated. In our review of this matter, we have noted that the judgment of conviction indicates that defendant was convicted of aggravated sexual assault. In fact, the jury found him not guilty on both counts of that crime. Although the text of the judgment of conviction is correct in that it imposes no sentence for first-degree aggravated sexual assault, a corrected judgment should be entered which omits that offense from the listing of final charges.

Defendant's convictions and sentence are affirmed; the matter is remanded for entry of a corrected judgment of conviction.

 

There was testimony that the dog, a pit bull, had belonged to Hill's son and that Hill had asked his son to lend it to Wilson as protection.

(continued)

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35

A-1590-05T4

July 31, 2008