STATE OF NEW JERSEY v. OMAR HOLMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2133-07T42133-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR HOLMES,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 22, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-10-3299, 06-11-3666 and 06-11-3667.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, of counsel and on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal pertains to defendant's convictions under three separate Essex County indictments, and the sentences that were imposed on all three indictments on the same date. Indictment No. 06-10-3299 contained three counts: (1) third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a); (2) third-degree resisting arrest, N.J.S.A. 2C:29-2a(3); and (3) fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1. Defendant was tried jointly with his co-defendant, Kasim-Simon Hedgespeth. The jury acquitted defendant of count one, found him guilty of count two, and, on count three, found him guilty only of the lesser-included offense of disorderly persons obstructing administration of law. Subsequent to the trial, but before sentencing, defendant pled guilty to count one of Indictment No. 06-11-3666, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. He also pled guilty to the single count in Indictment No. 06-11-3667, second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b. The offenses in these two indictments arose out of the same incident, which was unrelated to the subject matter implicated in the first indictment we mentioned.

In pleading guilty to the latter two indictments, defendant entered into a plea agreement with the State which provided that defendant would be sentenced to five years imprisonment on Indictment No. 06-11-3666, concurrent to a sentence of ten years imprisonment with a five-year parole disqualifier on Indictment No. 06-11-3667, and that those sentences would be served concurrent with whatever sentence the court would impose on Indictment No. 06-10-3299, and also concurrent to another sentence that defendant was then serving. The plea agreement also provided for dismissal of count two of Indictment No. 06-11-3666 (fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d) and dismissal of another outstanding complaint and another indictment.

Defendant was sentenced on July 10, 2007. The judge imposed the sentence recommended in the plea agreement on the two indictments under which defendant pled guilty. On the indictment under which defendant went to trial, defendant received a sentence of five years imprisonment on count two and six months imprisonment on count three. All sentences were ordered to run concurrently to each other, thus resulting in an aggregate term of ten years imprisonment with a five-year parole disqualifier to be served concurrently with a sentence defendant was already serving. All other outstanding charges were dismissed in accordance with the plea agreement.

Defendant raises two arguments on appeal. The first relates to the trial, and the second relates to the sentences imposed on all three indictments that are the subject of this appeal. More particularly, defendant argues:

POINT ONE

THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S REQUEST FOR AN ADVERSE INFERENCE CHARGE AGAINST THE STATE FOR ITS FAILURE TO CALL AS WITNESSES THE TWO FEMALE POLICE OFFICERS WHO WERE PART OF THE INCIDENT AND FOR DENYING DEFENSE COUNSEL THE OPPORTUNITY TO ARGUE IN HER SUMMATION THAT THE JURY SHOULD DRAW AN ADVERSE INFERENCE AGAINST THE STATE.

POINT TWO

DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.

We reject these arguments and affirm.

I

Just past midnight on July 28, 2006, Newark police officers Marlon Silva and Tamoya Ocasio, who were in uniform and patrolling in a marked police vehicle, observed a crowd of about twenty people in a residential neighborhood. They attempted to disperse the crowd because of the lateness in the hour and because some in the crowd were "being loud." Some individuals complied, and others did not. The officers called for back-up, and eventually officers Ramon Candaleria and Iesha Carroll arrived. They were also in uniform and arrived in a marked police vehicle.

The State called two witnesses at trial, namely Officers Candaleria and Silva. Defendant called two witnesses, Giovanna Barnaid, and defendant's fiancé, Stephanie Johnson. Co-defendant Hedgespeth called one witness, Yolanda Hogan. Neither defendant nor co-defendant testified. Because of the nature of defendant's first point of argument, it is helpful that we set forth in some detail the factual circumstances, and, to the extent relevant, the particular testimony of some of the witnesses.

When Candaleria and Silva initially interacted with the crowd, a young woman, later identified as Yolanda Hogan, became angry and began cursing at them. Silva testified that because of this outburst Yolanda was placed in a police vehicle. She was not handcuffed, and she was advised that she could have been arrested for disorderly conduct. She was not arrested, but was advised that the officers were simply trying to disperse the crowd. Yolanda began to calm down, and the officers were going to release her. However, Yolanda's sister, Malitia Hogan, approached the vehicle and began cursing and threatening the officers. Malitia told Ocasio that she was going to kill her with "her own gun." A crowd began to gather around the vehicle. It was at that point that Silva and Ocasio called for back-up. After a physical struggle, during which the police used pepper spray, Malitia was placed in the police vehicle to obtain her information and to arrest her for making terroristic threats.

Candaleria and Carroll then arrived. By that time, about twelve to fifteen people remained in the crowd, and they were cursing and yelling. The situation began to get out of hand when four individuals, including defendant, came out of the crowd toward the police. Candaleria told the individuals to back off because the officers were effectuating an arrest. According to Candaleria, defendant "took a swing" at him, but narrowly missed as Candaleria ducked. Candaleria countered by punching defendant in the face. Co-defendant Hedgespeth then came at Candaleria and punched him. Candaleria retreated in order to call for further back-up. Silva stepped in to assist Candaleria, when a third individual attempted to hit Silva, knocking him to the ground. This unknown third individual fled. A fourth unknown individual also came at Silva and assaulted him, but he also fled.

At this point, Candaleria pursued Hedgespeth, and after a physical struggle and the use of pepper spray, he handcuffed Hedgespeth. Silva then stood with Hedgespeth as Candaleria went to assist Carroll and Ocasio in subduing defendant. Candaleria succeeded in subduing defendant and handcuffed him, but only after the use of pepper spray and a struggle in which Candaleria was hit in the mouth. Silva testified that he did not see defendant assaulting any police officers or resisting arrest.

Barnaid was sitting on a porch of a nearby house. She testified that she saw Malitia Hogan walking down the street when the police arrived and began verbally harassing her. After a shouting match, Malitia left the scene, but not before stating to one of the officers that "if you didn't have that . . . badge and that gun, come see me later." According to Barnaid, the police came back to the scene a few minutes later and, without provocation, pushed Malitia up against a nearby fence and "mushed" her face. Barnaid also noticed that Yolanda Hogan was already in the back of a police vehicle, but was then taken out and put up against the side of the vehicle.

Barnaid said that at that point a crowd began to gather and defendant came around the corner and asked the police what was happening. Barnaid said that defendant was told to mind his own business, after which a police officer tackled him without provocation and handcuffed him. She said the police then began "macing" people out of nowhere, including Hedgespeth. Barnaid denied that defendant or Hedgespeth ever swung at or hit the police.

Johnson testified that defendant was hit in the face and sprayed with mace after simply "exchanging words" with the police. She also said Hedgespeth never hit anyone or even spoke to anyone, but was nonetheless sprayed with mace. Yolanda Hogan's account of the events also differed somewhat from that of the police witnesses. Although she admitted cursing at the officers when they approached her and then walking toward the police, she said she was put in handcuffs and was hit twice and pushed to the ground after she refused to get into the police vehicle. She admitted spitting at the officers, and also said she was maced as a result of her resistance.

After the defense rested, defense counsel requested that the court include in its jury instructions a charge pursuant to State v. Clawans, 38 N.J. 162 (1962), instructing the jury that it could presume that because the State had not produced the testimony of Officers Ocasio and Carroll their testimony would have been unfavorable to the State. The prosecutor informed the court that Carroll was on vacation that week and was therefore unavailable to all parties. Further, the judge agreed that both officers were available to be subpoenaed by defense counsel and were therefore equally available to be called as witnesses by the defense. The judge was also persuaded that the State did not require the additional testimony because it would have been duplicative of that which the State had presented and that the additional officers were not "absolute necessary parties." For the same reasons, the judge also denied defense counsel's request to be permitted to make comments to a similar effect during summation.

II

In Clawans, supra, 38 N.J. at 170-72, the Court held that under certain conditions it is appropriate for a court to instruct the jury that the failure of one party to produce a witness at trial supports an inference that the witness's testimony would have been unfavorable to that party. Courts should give such an instruction only where it is determined

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue, and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[State v. Hickman, 204 N.J. Super. 409, 413-414 (App. Div. 1985).]

This same procedure is to be followed to determine whether counsel should be permitted to make comments to the same effect in summation. State v. Carter, 91 N.J. 86, 128 (1982); Hickman, supra, 204 N.J. Super. at 414.

In recent cases, the Clawans rule has been substantially curtailed in circumstances in which the State seeks the inference against a defendant in a criminal case. State v. Hill, 199 N.J. 545, 565-67 (2009); State v. Velasquez, 391 N.J. Super. 291, 307 (App. Div. 2007). But that is not the situation here.

In Velasquez, we noted that caution is appropriate in the use of a Clawans inference generally, due to "the variety of reasons, unrelated to fear of the content of the testimony, that may more reasonably explain a litigant's decision to refrain from producing a witness." Id. at 307-08. See State v. Irving, 114 N.J. 427, 443 (1989) (recognizing that a witness may be unavailable for a variety of "legal, personal, practical or perhaps even social" reasons regardless of physical availability). Further, "[i]n many cases the only rational inference is that the witness's testimony would not have been helpful, which is something quite different than unfavorable or adverse." Velasquez, supra, 391 N.J. Super. at 308. Additionally, "when the testimony to be expected from that witness is unimportant to the litigant's case, cumulative or inferior to testimony already presented on the issue, it is more reasonable to infer that non-production is explained by the fact that the testimony is unnecessary." Id. at 308-09 (citing Clawans, supra, 38 N.J. at 171).

As a result of such alternative explanations, "a court should evaluate a litigant's decision to do without a witness by considering the 'person,' who is the witness, and the content of his or her expected 'testimony.'" Id. at 308 (citing Parentini v. S. Klein Dep't Stores, Inc., 94 N.J. Super. 452, 456 (App. Div.), certif. denied, 49 N.J. 371 (1967)). "A court should not start with the assumption that an absent witness's testimony must be favorable to either one side or the other and an adverse inference must arise against either." Ibid. (citing United States v. Busic, 587 F.2d 577, 586 (3d Cir. 1978), rev'd on other grounds, 466 U.S. 398, 100 S. Ct. 1747, 64 L. Ed. 2d 381 (1980)).

Applying these principles, we agree with the trial court that the Hickman factors were not satisfied and there were alternative reasons, other than fear of adverse testimony, supporting the State's failure to have called Carroll and Ocasio as witnesses. These witnesses were not solely within the control or power of the State. Defendant had access to their reports and could have subpoenaed them if he felt their testimony would be helpful to his case. Instead, defendant waited until the end of the trial to argue for an inference. Moreover, the prosecutor explained that Carroll was on vacation during the week of the trial, and therefore unavailable to all parties. Nothing in the record contradicts that explanation or suggests that the State avoided calling either of the officers in fear that their testimony would be adverse.

Further, although the testimony of Ocasio and Carroll may have been relevant, there is nothing in the record to suggest that their testimony was superior to that already provided by the State or necessary to shed light on facts in the case. Defendant argues that Silva's testimony "directly contradicted Candaleria's testimony regarding [defendant]," pointing out that Silva testified that he never saw defendant assault any police officer or resist arrest. He thus concludes that "it would be logical to assume that at least one of the other officers would have been called by the [S]tate to support Candaleria's version that [defendant] was guilty, as opposed to Silva's version that [defendant] was not guilty." Defendant further points out that because Barnaid and Johnson also testified that they did not see defendant assault a police officer, it was plausible that such additional testimony would have supported defendant's innocence.

In our view, this argument relies upon a mischaracterization of Silva's testimony as being contrary to Candaleria's account of the events. Silva merely stated that he did not see defendant assault any police officers, which is not inconsistent with Candaleria's testimony that he was assaulted. Indeed, when Candaleria and Carroll arrived on the scene, Silva was focused on Malitia Hogan and was attempting to obtain information from her. While his attention was committed to that undertaking, the four individuals came out of the crowd and, according to Candaleria, defendant then took a swing at him. Thus, at that moment, Silva's attention was directed elsewhere.

Silva then turned his attention to Candaleria, and he observed the next event described by Candaleria, namely that Hedgespeth hit Candaleria in the face. Similarly, after Candaleria handcuffed Hedgespeth, Silva stood with and tended to Hedgespeth while Candaleria aided Carroll and Ocasio in subduing defendant. It was at this point that defendant allegedly hit Candaleria in the mouth. Therefore, again, Silva's attention was turned to other matters, thus providing a rational explanation for his failure to observe defendant assaulting Candaleria.

As a result, it cannot be concluded that Silva's testimony contradicted that of Candaleria. Therefore, there was no basis for a negative inference to be derived from the State's failure to call Ocasio or Carroll. Likewise, there is nothing to demonstrate that the testimony of Ocasio and Carroll would have been anything other than cumulative to the accounts provided by Silva and Candaleria.

We also reject defendant's argument, relying on State v. Walden, 370 N.J. Super. 549, 561-62 (App. Div.), certif. denied, 182 N.J. 148 (2004), that he should have been allowed to make an adverse inference argument to the jury in support of his argument that the State failed to meet its burden of proof based upon an absence of evidence. In Walden, the prosecutor stated in his opening that he would produce certain witnesses, but he failed to do so. The trial judge precluded on Clawans grounds defense counsel's attempted summation argument that the jury should penalize the State for failing to present promised evidence. Id. at 561.

On appeal, we noted that "defense counsel insisted he was not . . . asking the jury to draw an adverse inference from the State's failure to call [the witness]," and that "[i]nstead, he was attempting to argue that the jury should find reasonable doubt based upon a lack of evidence." Id. at 561-62. We therefore concluded that "any strategic choice made by defense counsel was frustrated," and "[t]he proffered argument was proper, and should have been allowed." Id. at 562. That is not the situation here. The State did not fail to produce promised evidence, and defendant has pointed to no frustration of any defense strategy. The analysis here is properly predicated upon the Clawans rationale and application of the Hickman factors. For the reasons we have stated, that analysis and those factors support the trial judge's rulings.

III

Finally, we address defendant's sentencing argument. We note that defendant had a substantial juvenile and adult criminal history. We also note that his aggregate sentence is in accordance with that recommended in the plea agreement. We are satisfied from our review of the record that the judge's findings regarding aggravating and mitigating factors were well supported by the evidence, the judge correctly applied the sentencing principles contained in the Criminal Code, and the sentence imposed was not excessive or unduly punitive, and it did not constitute a mistaken exercise of discretion. Accordingly, as a reviewing court, we will not interfere with the sentence imposed. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984).

 
Affirmed.

The indictment incorrectly designated this as a second-degree offense. Prior to trial, the court granted the prosecutor's motion to amend count one to correctly reflect that charge as a third-degree offense.

Co-defendant Hedgespeth was found guilty of three offenses. In a separate appeal, we affirmed his conviction. State v. Hedgespeth, No. A-0723-07T4 (App. Div. November 25, 2008).

Although not argued by the State, we note that defendant's request for the Clawans charge was not timely; it should have been made when the State rested, to afford the prosecutor the opportunity of either calling the absent witnesses or demonstrating by argument or proof the reason for the failure to call them. Clawans, supra, 38 N.J. at 172.

(continued)

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A-2133-07T4

April 14, 2010