STATE OF NEW JERSEY v. GREGORY CLARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4293-04T44193-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY CLARK,

Defendant-Appellant.

____________________________________________

 

Submitted November 13, 2007 - Decided

Before Judges Stern, C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-09-3383.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney (Laurie A. Corson, Special Deputy Attorney General, Acting Assistant Pros-ecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Gregory Clark (defendant) and his co-defendant Larry Henderson (Henderson) were charged with the first-degree murder of Rodney Harper on January 1, 2003, N.J.S.A. 2C:11-3(a)(1). Defendant was also charged with other offenses arising from the same incident, including second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four), and second-degree being a person not permitted to be in possession of a weapon, N.J.S.A. 2C:39-7(b) (count five).

The jury heard testimony that, in the early morning hours of January 1, 2003, Harper and James Womble were smoking crack cocaine at Womble's apartment in Camden. At approximately 2:45 a.m., there was a knock at the door, which Womble answered. One of the two men at the door was defendant, known to Womble as "Bubbles." Womble later identified the other man as Henderson.

According to Womble, Henderson pointed a gun at him and said, "[d]on't move, you're not involved." Defendant, according to Womble, went into another room of the apartment and began arguing with Harper about money. Womble heard Harper say, "do what you gotta do," following which he heard a gunshot. Womble testified that he then entered the other room where Harper sat bleeding from the chest. Defendant was still present and Womble offered to get the money that Harper apparently owed to defendant; he pleaded with defendant not to shoot Harper again. Defendant and Henderson left the apartment, and as they left, according to Womble, defendant said to him: "[d]on't rat me out, I know where you live."

At the conclusion of the trial, defendant was acquitted of murder, but found guilty of the lesser-included second-degree offense of reckless manslaughter. He was also found guilty on counts two and four. Following the rendering of that verdict, a trial occurred as to count five, as to which defendant was found guilty.

At sentencing, the judge merged count two into the manslaughter conviction and imposed an extended fifteen-year term, with an 85% period of parole ineligibility. The judge also imposed a four-year term on count four and a seven-year term, with a five-year period of parole ineligibility, on count five; these terms were ordered to run concurrently to each other but consecutive to the term imposed on the manslaughter conviction.

Defendant appealed. The brief filed by his assigned counsel raises the following arguments for our consideration:

I. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE DEFENDANT'S SECOND TRIAL IN WHICH HE WAS CHARGED WITH POSSESSION OF A WEAPON (A FIREARM) BY A CONVICTED FELON PURSUANT TO N.J.S.A. 2C:39-7(d) (NOT RAISED BELOW).

II. THE TRIAL COURT ERRED BY FAILING TO ENTER A JUDGMENT OF ACQUITTAL SUA SPONTE REGARDING THE CHARGE OF MURDER EMBODIED IN COUNT I, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER ARISING THEREFROM.

III. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE (NOT RAISED BELOW).

IV. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A HANDGUN WITHOUT A PERMIT INTO COUNT V CHARGING POSSESSION OF A WEAPON BY A CONVICTED FELON (NOT RAISED BELOW).

V. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Defendant also filed a pro se brief that raises the following issue:

TRIAL JUDGE ERRED BY NOT SUPPRESSING DEFEN-DANT'S INCRIMINATING STATEMENTS PURSUANT TO STATE V. A.G.D.[].

We conclude that defendant is entitled to be re-sentenced, but we find insufficient merit in defendant's remaining arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

In Point I, defendant argues that the second trial, which adjudicated the charge that he was a person not permitted to be in possession of a weapon, was unfairly prejudicial because the judge did not utilize that part of the model jury charge, or otherwise instruct the jury, as to how it could consider evidence of defendant's prior conviction. Specifically, the judge did not then tell the jury that:

Normally evidence (of defendant's prior conviction(s)) or (of the predicate offense(s)) is not permitted under our rules of evidence. This is because our rules specifically exclude evidence that a defendant has committed prior crimes when it is offered only to show that (he/she) has a disposition or tendency to do wrong and therefore must be guilty of the present offense. However, our rules do permit evidence of prior crimes when the evidence is used for some other purpose.

In this case, the evidence has been introduced for the specific purpose of establishing an element of the present offense. You may not use this evidence to decide that defendant has a tendency to commit crimes or that (he/she) is a bad person. That is, you may not decide that, just because the defendant has committed (a) prior crime(s) (he/she) must be guilty of the present crime(s). The evidence produced by the State concerning (a) prior conviction(s) is to be considered in determining whether the State has established its burden of proof beyond a reasonable doubt.

[Model Jury Charge (Criminal), "Certain Persons Not to Have Any Firearms" (2005) (footnotes omitted).]

Defendant never objected when the judge inadvertently omitted this portion of the model jury charge. Accordingly, the matter is subject to plain error review, R. 2:10-2, and defendant's burden on appeal is to demonstrate that the error was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973).

We recognize that erroneous jury instructions are "poor candidates for rehabilitation under the harmless error theory," State v. Weeks, 107 N.J. 396, 410 (1987). However, here we conclude that the inadvertent omission of a charge that would have advised the jury that it was not to assume that defendant was a bad person or had a propensity to commit crimes because he had previously been convicted of an offense was harmless. The fact of the matter is that defendant stipulated that he had been convicted of an offense that met the predicate for this charge. The jury, as a result of that stipulation, did not hear of the nature of the prior conviction. As a result, any possible prejudice caused by omission of the portion of the model jury charge in question was greatly lessened, and there was far less likelihood that the jury could have drawn impermissible inferences based upon that prior conviction than had the jury heard more about the prior conviction.

In Point III, defendant asserts that the prosecutor exceeded the bounds of propriety and impermissibly infringed upon defendant's Fifth Amendment rights, in a summation that challenged the credibility and logic of a statement made by defendant during custodial interrogation. We have carefully reviewed the prosecutor's summation and defendant's arguments in light of the failure of his attorney to object to what he now claims was an inappropriate argument. We are satisfied that the prosecutor discussed only facts that were in evidence in attacking the credibility of defendant's statement. For example, the prosecutor pointed out to the jury that defendant had originally denied being in the apartment where the shooting occurred, but then changed his story to claim he was there and engaged in an altercation with Harper. He claimed in his statement that Harper had pointed a gun at him, but it appears that he only adopted this position when the police investigator suggested it. The prosecutor also challenged that part of defendant's statement in which he claimed that he had attempted to wrestle the gun away from Harper when it discharged.

As has often been observed, prosecutors are entitled and expected to make vigorous and forceful arguments. State v. Smith, 167 N.J. 158, 177 (2001); State v. Rose, 112 N.J. 454, 517 (1988). Here, the prosecutor made a forceful argument that was entirely limited to facts in evidence and that neither directly nor indirectly commented upon defendant's Fifth Amendment privilege. We, thus, reject defendant's contentions to the contrary.

Defendant also argues, in a point contained in his pro se brief, that the statement he gave to the police should have been suppressed because he was not informed, when he waived his Miranda rights, that the police had a warrant for his arrest. He claims that the Supreme Court's decision in State v. A.G.D., supra, 178 N.J. at 68, requires this relief. It is true that the Court held in A.G.D. that an accused is entitled to know that he is the subject of an arrest warrant when questioned by police. Ibid. However, the testimony of Investigator McNair indicates that defendant was arrested before he was advised of and waived his Miranda rights. Moreover, defendant never moved prior to trial to suppress his statement nor did he object to its admission during the course of the trial; his argument in this court is his first attempt to raise the issue. Accordingly, we will not further consider this issue. See, e.g., State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006).

Lastly, as we indicated, defendant is entitled to be re-sentenced in conformity with the principles set forth in State v. Pierce, 188 N.J. 155 (2006), as the State concedes. We reject all of defendant's other arguments regarding the sentence imposed.

Affirmed, but remanded for re-sentencing.

Henderson was also convicted at the same trial of second-degree reckless manslaughter and other offenses. He, too, appealed, and his appeal was calendared back-to-back with this matter. We decided the issues raised in Henderson's appeal in a separate opinion also filed today. __ N.J. Super. __ (App. Div. 2007).

State v. A.G.D., 178 N.J. 56 (2003).

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

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A-4193-04T4

January 7, 2008