STATE OF NEW JERSEY v. KEITH BLACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2060-06T42060-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH BLACK,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 27, 2009 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-0790.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Keith Black appeals from a judgment of conviction entered on August 11, 2006 after a jury found him guilty of first degree murder, N.J.S.A. 2C:11-3a(1) and (2); first degree attempted murder, N.J.S.A. 2C:5-1 and 11-3; second degree aggravated assault, N.J.S.A. 2C:12-1b(1); third degree aggravated assault, N.J.S.A. 2C:12-1b(4); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. After the appropriate mergers, defendant was sentenced to an aggregate term of forty-five years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The charges arose out of the shooting of two individuals on November 21, 2004. Defendant had an argument with Tyrone Fuller about their respective territories for selling illegal drugs in Jersey City. Defendant shot Tyrone in the back of the neck and Tyrone died within seconds. Tyrone's brother, Marquis, was present. Defendant chased Marquis and shot him in the lower back. Marquis survived the shooting and was taken to the hospital. Two days later, he identified defendant as the shooter and an arrest warrant was issued. Defendant was eventually arrested in Arizona, waived extradition and was returned to New Jersey.

In this appeal, defendant argues:

POINT I

THE TRIAL JUDGE ERRED IN CHARGING FLIGHT TO THE JURY AS THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE INFERENCE THAT THE DEFENDANT'S ABSENCE WAS AS A RESULT OF CONSCIOUSNESS OF GUILT.

POINT II

THE TRIAL JUDGE ERRED IN FAILING TO HOLD A HEARING AFTER A JUROR BEGAN CRYING DURING THE DISTRIBUTION OF PICTURES OF THE DECEDENT.

POINT III

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Defendant first claims that the trial court erred in instructing the jury that flight could be inferred as consciousness of guilt. Prior to trial, the court indicated that it would not give a flight charge based upon evidence of defendant's arrest in Arizona. The State made an emergent application appealing that order and we summarily affirmed.

The State then argued to the trial court that the flight charge should be given on the basis of evidence presented during trial that police attempted to locate defendant at his parents' homes and at his mother's place of employment. Based upon defendant's absence from those places - not the fact that defendant was arrested in Arizona - the trial court charged the jury on flight. Defendant argues that there was insufficient evidence upon which to base a flight charge.

In State v. Long, 119 N.J. 439, 499 (1990), the defendant testified that he went to New York and failed to turn himself in for two weeks, even though he knew he was wanted in Atlantic City. Id. at 499-500. While two witnesses testified that defendant was "furtive and nervous" in the days after the crime, other evidence contradicted an inference of flight. Id. at 500. "Defendant remained in Atlantic City for a few days after the shooting, visited a New Jersey prison . . . and voluntarily surrendered" to the police in Atlantic City. Ibid. Under those circumstances, the Supreme Court found that "[t]he facts were marginally sufficient to support a flight charge." Id. at 499.

Flight of an accused is admissible as evidence of consciousness of guilt, and therefore of guilt. Mere departure, however, does not imply guilt. Flight requires departure from a crime scene under circumstances that imply consciousness of guilt. There is a thin line in some cases between the defendant's right to presumed innocence and the right of a jury to infer guilt from conduct.

[Ibid. (citations omitted).]

"The term 'flight' is often misused for 'departure.' Departure from the scene after a crime has been committed, of itself, does not warrant an inference of guilt." State v. Sullivan, 43 N.J. 209, 238 (1964) (emphasis added). "For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Id. at 238-39 (citations omitted). "The potential for prejudice to the defendant and the marginal probative value of evidence of flight or escape mandate careful consideration of the nature of the evidence to be admitted and the manner in which it is presented." State v. Mann, 132 N.J. 410, 420 (1993) (citing United States v. Hankins, 931 F.2d 1256, 1261-62 (8th Cir.), cert. denied, 502 U.S. 886, 112 S. Ct. 243, 116 L. Ed. 2d 198 (1991)).

Here, the evidence indicated that the police went to defendant's mother's home, but she was not there. Defendant's siblings and cousins who were present in the house "said they hadn't seen defendant in a week." The officer testified further that "[defendant] wasn't at the family residence when we went there. [We] [w]ent to his father's home, I believe. He was not there, and we met with his mother at a place of employment, and we couldn't locate him."

That evidence alone is insufficient to support a flight charge. There was no indication that the police attempted to locate defendant at his place of employment, or that any member of defendant's family intentionally misled the police such that the jury could properly infer from the evidence that defendant was hiding from the police or that he had a consciousness of guilt to avoid prosecution. We are satisfied that the flight charge was not warranted.

We must next determine whether the charge resulted in harmless or reversible error. Defense counsel objected to the flight charge on the grounds that the evidence was not conclusive of flight nor did it demonstrate a consciousness of guilt. Counsel argued that defendant could have been at his work, at school or gone to the store when he was not found at his mother's or father's homes or at his mother's place of employment.

The State now argues that there was additional evidence in the record to support an inference of defendant's consciousness of guilt. The State notes that an eyewitness, Dennis Wright, testified that after the shooting, defendant "ran" in the opposite direction. That evidence, however, was not raised by the State in its argument that the flight charge should be given, nor would we consider it sufficient for a flight charge under the circumstances presented.

"Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). It has long been recognized that the "'charge is a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations.'" State v. Cuni, 303 N.J. Super. 584, 603 (1997), aff'd, 159 N.J. 584 (1999) (quoting State v. Gartland, 149 N.J. 456, 475 (1997)). Generally, "[e]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." Afanador, supra, 151 N.J. at 54. "We will disregard any error or omission by the trial court [as harmless] unless it is of such a nature as to have been clearly capable of producing an unjust result." State v. Ingram, 196 N.J. 23, 49 (2008) (internal quotation marks omitted) (quoting State v. Castagna, 187 N.J. 293, 312 (2006)). "[B]efore a . . . constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Ibid. (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)). To find reversible error, on the other hand, "there [must] be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. R.B., 183 N.J. 308, 330 (2005) (citing State v. Bankston, 63 N.J. 263, 273 (1973)).

An erroneous jury charge will be deemed harmless, however, when there is overwhelming evidence of guilt. State v. Marrero, 148 N.J. 469, 497 (1997) (holding that in "consideration of the near overwhelming evidence of guilt . . . the failure of the trial court to give a sufficiently limiting instruction governing the use of other-crime evidence was not 'clearly capable of producing an unjust result.'") (quoting State v. Cofield, 127 N.J. 328, 341 (1992)).

In reviewing the record here, we are satisfied that the flight charge was harmless error because the evidence of guilt was so overwhelming that even if the charge had not been given, the outcome of the trial would in all likelihood have been the same. Two eyewitnesses, Marquis Fuller and Dennis Wright, testified with respect to the shootings and left no doubt as to the identity of the shooter and the motive for it. Consequently, the overwhelming evidence of guilt renders the error harmless. Ibid.

Defendant next argues that the trial court erred in failing to voir dire jurors after juror number five began crying at the sight of the autopsy pictures of the decedent. In his brief, defendant argues that counsel came to side bar to call the judge's attention to the problem and request that the court examine the juror to determine whether she could render a fair and impartial verdict, given her reaction to the photographs. Although the record indicates that a side bar conference was conducted, it was not recorded in the transcript.

Defendant, relying on State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div. 1997), argues that whenever any improper influence on a juror is established, the trial court must resolve any doubts by removing the juror, or at the very least conducting a "searching voir dire." In its brief, the State notes that "[n]either the court nor the prosecution observed the juror's reaction to the photo[, and i]n the short time it took to bring the juror's behavior to the court's attention, the juror was no longer upset." Consequently, the State maintains that the court properly declined to voir dire the juror. In our review of the record, we find no evidence of "taint" or improper influence on the juror to warrant any interrogation regarding her reaction to the autopsy photos. See State v. Loftin, 191 N.J. 172, 187 (2007).

Finally, we find no merit in defendant's sentencing arguments. His criminal record dates back to 1996 when he first became involved in the juvenile system. Defendant was adjudicated delinquent on a charge of robbery and an attempt to kill in 1996 when he was only thirteen years old. He was twenty-one when he was found guilty of these two first degree crimes. The trial court properly weighed the aggravating and mitigating factors and the sentence imposed was well within the range for these crimes. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1998); State v. Roth, 95 N.J. 334 (1984).

Affirmed.

 

Wright was a reluctant and hostile witness who testified for the State pursuant to a subpoena.

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A-2060-06T4

July 1, 2009