STATE OF NEW JERSEY v. DAVID L. HOWARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2539-05T42539-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID L. HOWARD,

Defendant-Appellant.

_____________________________________________________________

 

Submitted December 9, 2008 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment Nos.

03-12-1274 and 03-12-1275.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Stephen W. Kirsch,

Assistant Deputy Public Defender, of counsel

and on the brief).

Anne Milgram, Attorney General, attorney for

respondent (Johanna Barba Jones, Deputy

Attorney General, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury found defendant David Howard guilty of the purposeful or knowing murder of Anthony Baker on April 25, 2003, in the City of Elizabeth, in violation of N.J.S.A. 2C:11-3(a)(1), or (2) (count one); third-degree possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count three). In a separate indictment, defendant was charged with second-degree possession of a handgun by a convicted person, in violation of N.J.S.A. 2C:39-7(b)(1). In a second trial before the same jury, defendant was convicted of the sole charge in the second indictment.

At defendant's sentencing hearing on March 4, 2005, the trial judge stated that defendant shot Anthony Baker "point blank in the chest. This was an execution. Although the victim Anthony Baker may have been involved in some improper behavior with respect to drugs at the time, the defendant executed the victim in cold blood." After merging count two into count three, defendant was sentenced to a fifty-year prison term, with forty-two-and-one-half years of parole ineligibility, under the No Early Release Act, N.J.S.A. 2C:43-7.2. On count three (second-degree possession of a handgun for an unlawful purpose), the court imposed a concurrent four-year prison term. On defendant's conviction for second-degree possession of a handgun by a previously convicted person, the court imposed a concurrent five-year prison term with a mandatory five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7(b). Thus, defendant received a fifty-year sentence with an eighty-five percent disqualifier for murder, and concurrent sentences on his other convictions. Defendant was also ordered to pay $2000 in fines, $200 to the Violent Crimes Compensation Board, $225 to the Safe Neighborhood Services Fund, and $60 to the Law Enforcement Officers Training and Equipment Fund (LEOTEF).

On appeal, defendant presents the following arguments in a brief filed by counsel:

POINT I

THE JURY INSTRUCTIONS WERE FATALLY FLAWED IN TWO RESPECTS: (1) FAILING TO CHARGE CAUSATION WHEN THE EVIDENCE INDICATED THAT A RELATIVE OF THE VICTIM, NOT DEFENDANT, MAY HAVE FIRED THE FATAL SHOT, AND (2) FAILING TO INSTRUCT THE JURY ON THE CLEARLY INDICATED LESSER-INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER (Not Raised Below).

A. CAUSATION.

B. PASSION/PROVOCATION MANSLAUGHTER

POINT II

IN DIRECT VIOLATION OF STATE V. ALVAREZ, THE STATE IMPROPERLY REFUSED DEFENDANT'S STIPULATION THAT HE HAD THE REQUISITE PRIOR CONVICTION FOR THE COUNT OF THE INDICTMENT CHARGING CERTAIN PERSONS NOT TO HAVE A WEAPON.

POINT III

A REMAND FOR MINOR SENTENCING AND MERGER ISSUES SHOULD BE ORDERED.

Additionally, defendant presents the following contentions in his pro se supplemental brief:

POINT I

INTRODUCTION OF OTHER-CRIMES/ACTS EVIDENCE DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND CONSEQUENTLY REQUIRES REVERSAL OF THE CONVICTION.

POINT II

DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL WHEN HE WAS CALLED BOTH A RACIAL SLUR AND OBSCENITIES REPEATEDLY BY A MEMBER OF THE VICTIM'S FAMILY, WHO MADE VARIOUS OUTBURSTS AND DEMONSTRATED HIGHLY PREJUDICIAL BEHAVIOR WHILE TESTIFYING.

POINT III

THE LOWER COURT ERRED BY NEGLECTING TO PROPERLY INSTRUCT THE JURY REGARDING MEDIA INFLUENCES AND COMMENTS ABOUT THE CASE FROM NON-JURORS, AND EXTRANEOUS PREJUDICES ARE RECORD SUPPORTED.

POINT IV

THE CUMULATIVE IMPACT OF THE ISSUES RAISED BY THE APPELLATE ATTORNEY AND RAISED IN THIS SUPPLEMENTAL LETTER BRIEF DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL RIGHTS TO A FAIR TRIAL AND WARRANT REVERSAL.

Based on our review of the record, the briefs, and the applicable law, we are satisfied that defendant's arguments pertaining to his convictions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). However, we remand for resentencing because defendant has raised meritorious sentencing issues.

During defendant's trial, Joseph Baker testified that on April 24, 2003, between 10 and 11:00 p.m., he walked with his older brother, Anthony, and his cousin, West Johnson, to their aunt's house at 1010 Flora Street in Elizabeth. Flora Street intersects both Highway 1 & 9 and Catherine Street, which run parallel to each other. 1010 Flora Street is near Highway 1 & 9, while 1040 Flora is near Catherine Street.

When the trio arrived on Flora Street, Joseph observed "there [were] a lot of people out" on the street. While the three men were in the house at 1010 Flora Street, Denise Baker asked her cousin, Anthony Baker, who the men were that were across the street. Anthony took Denise to a window, and he pointed out Ismeel Lewis and defendant, who he identified as "Buck." About half an hour later, Joseph, Anthony, and West Johnson went outside and Joseph saw his brother have a short conversation with three men, who were "standing across the street." Joseph testified that when his brother returned, he said that he "told the three guys that they had to leave the area."

According to Joseph, the three men then left the area for awhile, but they were not gone for long. Joseph testified that defendant spoke briefly with Ismeel Lewis before crossing the street to 1010 Flora. Joseph described the shooting as follows:

Q. Where did [Buck] go when he crossed the street?

A. In front of 1010 Flora Street.

Q. He came to where you were?

A. Like, a couple of feet away from us.

. . . .

Q. What was your brother doing just before Buck came across the street? What happened?

A. He was talking to somebody in a car.

. . . .

Q. And what happened when the car first pulled up?

A. My brother walked up to the car.

Q. What was his purpose in walking up to the car?

A. To sell drugs, I guess.

. . . .

Q. What did your brother do after he went up to that car? What did he do?

A. Started walking toward me.

Q. How close did your brother get to you?

A. Right next to me.

Q. What happened as your brother got close to you?

A. Well, him and Buck past each other first, and then when my brother got next to me all we heard was him say, "What you say"?

THE COURT: Who said that?

A. He said, "What you say"? That is when he turned around and he started shooting.

THE COURT: How far away was Buck . . . from Anthony when he started shooting[?]

THE WITNESS: Probably, like, as far as he is from me.

THE COURT: . . . The distance between the witness box to where Mr. Holmes is standing is, approximately, 18 feet.

How far or close were you to Buck when you saw the shooting?

THE WITNESS: Me and my brother was right next to each other. We was about the same distance.

THE COURT: Next question.

. . . .

Q. Did your brother get hit?

A. Yes.

Q. How do you know that?

A. Because we took him to the hospital.

Q. Did you hear your brother make any noises?

A. When . . . the first shot went off he said, "Ahhh," and grabbed his chest.

Q. When Buck started shooting what did you guys do?

A. We ran.

Q. To where?

A. Couple houses across the street down towards Catherine Street, not that far, though.

As Joseph and Anthony were running towards Catherine Street, defendant was still shooting. Defendant then ran in the opposite direction, towards Highway 1 & 9.

On April 28, 2003, Joseph identified defendant from a photographic array presented by Detective Luchaun Holmes of the Elizabeth Police Department, and Joseph also identified defendant in court. When Joseph was asked if there was any doubt that defendant "shot at you and your brother?" he answered "no."

The victim's cousin, West Johnson, provided similar testimony. Johnson testified that after his cousin was shot, he retrieved a nine-millimeter handgun that was under a crate in the alley between 1010 and 1012 Flora Street, and he started shooting at defendant and chasing him as he ran from the scene:

Q. I understand. You came out the alleyway?

A. Uh-huh.

Q. You started shooting?

A. Uh-huh.

Q. And you shot towards the person that you've identified as Buck?

A. Uh-huh.

Q. Okay. Now, as you were shooting were you running behind him at the same time?

A. Doing my best.

Q. Okay. And so you ran all the way up to 1&9?

A. All the way to 1&9.

Q. And you were shooting the whole time?

A. The whole time. The whole time.

Q. And, then, did you stop at 1&9?

A. I ran out. I ran out of shells.

Q. You ran out of shells at, around, 1&9?

A. Right at the corner.

Johnson testified that when he started shooting at defendant, Anthony was in back of him, trying to get away. Johnson stated he fired eleven shots at defendant as he chased him toward Highway 1 & 9, but defendant got in a waiting car on Anna Street and the car drove off. After Johnson returned to 1010 Flora Street, he learned that Anthony was badly injured and he took him to a hospital. Anthony died as a result of the gunshot wound to his chest at 1:10 a.m. on April 25, 2003.

On May 2, 2003, Johnson identified defendant from a photograph array prepared by Detective Dean Marcantonio, a member of the Union County Prosecutor's Office. According to Marcantonio, when Johnson saw defendant's photograph, he said: "That's [the] bastard. That's who shot my cousin. His nickname is Buck." Marcantonio then asked Johnson if he was sure, and Johnson said he was "365 percent sure that's him." Johnson also made a positive in-court identification of defendant as the person who shot and killed his cousin, Anthony.

This testimony by the victim's brother and his cousin was corroborated by Denise Baker, who witnessed the shooting from inside the house at 1010 Flora, and Ismeel Lewis. However, the testimony of these two witnesses was not entirely consistent. Denise Baker testified that Johnson started shooting at defendant "about 40 to 60 seconds after Buck started firing." But Lewis, who did not see the shooting, described what he heard as follows:

Q. How far did you get away from Buck before you heard the shots fired, in distance? How much ground did you cover?

A. Several houses.

Q. What did you hear? Describe to the jury what you heard?

A. Like, 15 shots.

Q. Where they all the same?

A. No.

Q. What was the difference between the shots?

A. It was, like, loud shots and it was, like, more quieter shots, like.

Q. Was the loud shots first or second?

A. It was, like, at the same time.

Q. The first shots you heard when you were . . . heading towards Catherine Street, was it loud or dimmer.

A. Loud.

Q. How about the second shot?

A. Dimmer.

Q. What did you do when you heard the shots?

A. Ran.

During the course of their investigation, the police found a total of nine shell casings. The shell casings were of two different calibers. Four of the shell casings were fired from a .45 caliber handgun, and five of the shell casings were determined to have come from a nine millimeter handgun. The bullet that killed Anthony was never recovered, however, and no fingerprints were found on any of the shell casings recovered at the scene.

Defendant did not testify, and he did not call any witnesses to testify on his behalf. During her summation, defense counsel argued that the State failed to prove beyond a reasonable doubt that defendant was the person who shot and killed Anthony. Alternatively, counsel argued that there were "two shooters" and West Johnson "may have done it."

In his first point, defendant contends the trial court committed reversible error by failing to instruct the jury on causation and by failing to instruct the jury on the lesser-included offense of passion/provocation manslaughter. Because neither of these issues were raised before the trial court, we must apply the plain error rule:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

[R. 2:10-2.]

As the Supreme Court explained in State v. Macon, 57 N.J. 325, 336 (1971), "[t]he possibility [of an unjust result] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Nonetheless, "the court must explain the controlling legal principles and the questions the jury is to decide. So critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error." State v. Martin, 119 N.J. 2, 15 (1990) (citations omitted).

"[A] charge must adequately set forth all elements of the offense charged, State v. Green, 86 N.J. 281, 288 (1981)." State v. Smith, 210 N.J. Super. 43, 54 (App. Div. 1986), certif. denied, 105 N.J. 582 (1986). "Causation is an essential element for jury determination" in a homicide case, State v. Whitted, 232 N.J. Super. 384, 391 (App, Div. 1989). Our courts have found error in the omission of a charge explaining the requirements of causation as defined in N.J.S.A. 2C:2-3 when the evidence raises a question about causation. See, e.g., Martin, supra, 119 N.J. at 16-17; Whitted, supra, 232 N.J. Super. at 391-92; Smith, supra, 210 N.J. Super. at 53-57. In contrast, when the evidence does not raise a dispute about "the causal relationship between conduct and result" and the defense is a complete denial rather than a challenge to the causal connection, we have concluded that an instruction on causation under N.J.S.A. 2C:2-3 is not necessary. State v. Mujahid, 252 N.J. Super. 100, 113 (App. Div. 1991), certif. denied, 127 N.J. 561 (1992).

In this case, defendant claims that because Lewis testified that he heard simultaneous gun shots, there was a question about who fired the fatal shot. But that question, the identity of the shooter, was adequately addressed by the court's instruction. When the trial court instructed the jury on the murder charge it stated, on several occasions, that defendant could not be convicted of murder unless the State proved beyond a reasonable doubt that "defendant, either purposely or knowingly, caused the victim's death or serious bodily injury resulting in death." Similar charges were repeated in relation to reckless and aggravated manslaughter. Under these circumstances, we perceive no reasonable basis to conclude that it was error to omit an additional instruction on causation. The instruction given permitted a finding of guilt on one basis-that defendant purposely or knowingly fired the fatal shot that killed the victim.

Additionally, defendant contends that a passion/ provocation manslaughter instruction was warranted. Because defendant did not request the trial court to instruct the jury on passion/provocation manslaughter, the trial court was not obligated "to sift through the entire record" on its own to determine "if some combination of facts and inferences might rationally sustain a [passion/provocation] manslaughter charge." State v. Choice, 98 N.J. 295, 299 (1985). Absent a specific request by defendant, a trial court is only obligated to instruct the jury on a lesser-included charge "when the facts 'clearly indicate' the appropriateness of that charge." Ibid.

The elements of passion/provocation manslaughter are (1) adequate provocation; (2) the absence of a cool-off period between the provocation and the slaying; (3) the provocation must have actually impassioned defendant; and (4) defendant must not have cooled off before the slaying. N.J.S.A. 2C:11-4(b)(2). Based on the eyewitness testimony of Joseph Baker and West Johnson, and the corroborating evidence, there was no rational basis for the jury to acquit defendant of murder but find him guilty of passion/provocation manslaughter. Although words were apparently exchanged between Anthony and defendant prior to the shooting, there was no fighting, and "words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter." State v. Crisantos, 102 N.J. 265, 274 (1986). Accordingly, there was no error in failing to give a passion/provocation manslaughter charge, much less plain error.

Contrary to defendant's claim on appeal, Lewis' vague testimony about hearing simultaneous gun shots was insufficient to clearly indicate a basis for the jurors to find that defendant fired his gun because of passion attributable to adequate provocation. Similarly, that testimony was inadequate to raise a factual question about whether this fatal shooting was within defendant's design or contemplation or a result that was too remote or "accidental in its occurrence to have a just bearing on [his] liability." N.J.S.A. 2C:2-3(b).

In his next point, defendant contends that his conviction for possession of a handgun by a previously convicted person must be reversed and remanded for retrial because "the State refused to accept the defendant's stipulation that his prior convictions were sufficient to satisfy the prior conviction element" of N.J.S.A. 2C:39-7(b). We agree the trial court erred in rejecting defendant's proposed stipulation. See State v. Alvarez, 318 N.J. Super. 137, 154 (App. Div. 1999) (noting that "the trial judge erred in refusing to allow defendant to stipulate that he had the required convictions under N.J.S.A. 2C:39-7"). Nevertheless, in this case, unlike in Alvarez, the court gave the jury an adequate limiting instruction, emphasizing that the evidence of defendant's prior convictions for "possession of a controlled dangerous substance within a thousand foot of a school or aggravated assault" was admissible for only a very limited purpose:

In this case the evidence has been introduced only for the specific narrow purpose of establishing an element or a part of the present offense. You may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because the defendant has committed a prior crime he must be guilty of the present crime. The evidence produced by the State concerning a prior conviction has no place in your determination whether the defendant possessed the firearm in this case on the issue of possession.

In light of this limiting instruction, which was sufficient to eliminate any undue prejudice to defendant, and the State's strong proofs, we are satisfied that the court's failure to accept defendant's proposed stipulation was harmless. See R. 2:10-2; State v. Macon, 57 N.J. 325, 340 (1971).

With regard to his sentence, defendant argues that the court's imposition of two LEOTEF penalties totaling $60 is illegal. We agree. In State v. Owens, 381 N.J. Super. 503 (App. Div. 2005), defendant pled guilty to three charges in two separate indictments, and three LEOTEF penalties totaling $90 were imposed. We determined that the LEOTEF penalty was "illegal" because N.J.S.A. 2C:43-3.3(a) "provides for a $30 penalty per disposition." Id. at 515.

In addition, defendant contends that the sentencing judge failed to state his reasons for imposing $2000 in fines. A court is required to "state reasons for imposing [a] sentence including findings pursuant to the criteria for withholding or imposing imprisonment or fines under N.J.S.A. 2C:44-1 to 2C:44-3." R. 3:21-4(g). Additionally, prior to imposing a fine, a court must determine if "[t]he defendant is able, or given a fair opportunity to do so, will be able to pay the fine[.]" N.J.S.A. 2C:44-2(a)(2); State v. Newman, 132 N.J. 159, 169 (1993). If a court concludes that a defendant possesses or could possess the ability to pay, it may then determine the amount of the fine and the method of payment, taking "into account the financial resources of the defendant and the nature of the burden that its payment will impose." N.J.S.A. 2C:44-2(c)(1). That did not happen in this case. Accordingly, we are constrained to vacate the fines and remand this issue to the trial court for reconsideration.

In conclusion, we affirm defendant's convictions but remand for merger of count three into count one, the imposition of sentence on count two, and for reconsideration of the fines. In addition, the court shall impose one LEOTEF penalty in the amount of thirty dollars.

 
Affirmed in part, reversed in part, and remanded for additional proceedings consistent with this opinion.

When a defendant is charged with both unlawful possession of a handgun and possession of a handgun by a prohibited person, the "two charges must be tried separately since proof that defendant was a convicted felon (required in the trial of the latter charge) clearly tends to prejudice the jury in considering the former." State v. Ragland, 105 N.J. 189, 193 (1986).

The parties agree this was error. See State v. Deluca, 325 N.J. Super. 376, 392-93 (App. Div. 1999) (holding a conviction for possession of a handgun without a permit does not merge with a conviction for another crime "[b]ecause the gravamen of unlawful possession of a handgun is possessing it without a permit"), aff'd on other grounds, 168 N.J. 626 (2001).

The parties agree that defendant's conviction on count three should have been merged into defendant's murder conviction (count one). See State v. Diaz, 144 N.J. 628, 641 (1996) (noting that merger is required when "the unlawful purpose was to use the gun against the victim of the substantive offense").

(continued)

(continued)

19

A-2539-05T4

August 25, 2009