STATE OF NEW JERSEY v. DAW'UD FARRIED

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3039-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAW'UD FARRIED,

Defendant-Appellant.

__________________________

October 21, 2010

 

Submitted September 20, 2010 - Decided

 

Before Judges C.L. Miniman and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3588.

 

Yvonne Smith Segars, Public Defender, attorneyfor appellant (Robert Seelenfreund, Assistant Deputy Public Defender, of counsel and on the brief).

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Essex County Indictment No. 06-11-3588 charged defendant with first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1(b); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. All offenses charged in this indictment occurred on June 1, 2006.

Essex County Indictment No. 06-10-3392 charged defendant with second-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2; third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); third-degree possession of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7; third-degree unlawful possession of a nine-millimeter handgun, N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a weapon while in the course of committing certain narcotics offenses, N.J.S.A. 2C:39-4.1; and third-degree unlawful possession of a .22-caliber handgun, N.J.S.A. 2C:39-5(b). All offenses charged in this indictment occurred on July 20, 2006.

On April 16, 2007, pursuant to a negotiated plea agreement, defendant entered guilty pleas to third-degree unlawful possession of a nine-millimeter handgun and third-degree unlawful possession of a .22-caliber handgun in Indictment No. 06-10-3392; the State recommended dismissal of all other counts in that indictment and a sentence of three years with an eighteen-month parole ineligibility period.

Tried to a jury on Indictment No. 06-11-3588, defendant was convicted of second-degree aggravated assault, third-degree unlawful possession of a handgun, and second-degree possession of a handgun for an unlawful purpose.

Defendant was sentenced on all charges on July 9, 2007. Pursuant to the State's motion, he was sentenced as a persistent offender under N.J.S.A. 2C:44-3. The judge imposed a term of seventeen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated assault charge; the two weapons offenses merged; and he received a concurrent five-year term for unlawful possession of a weapon. On that same date, defendant was sentenced pursuant to his plea agreement to two concurrent three-year terms, with an eighteen-month parole ineligibility period, on the third-degree weapons offenses under Indictment No. 06-10-3392.

Defendant's appeal relates only to Indictment No. 06-11-3588. The facts pertinent to that appeal may be summarized as follows.

Defendant and Dazjeanine Houston are the parents of a young son. They are not married and have no formal custody/parenting time arrangement in place. On June 1, 2006, the child, who was then not quite one year old, was with defendant. Houston called defendant to say that she wanted the child back, but defendant protested that it was too early to return the child to her. Houston asked her father, Darren Weathers, to drive her to defendant's house to retrieve her child. Two or three other individuals accompanied them.

Upon arrival at defendant's residence, Houston exited the car and engaged in a "fistfight" with defendant's sister and his girlfriend. During this fight, Weathers was attempting to take the baby away from defendant who was standing outside carrying the child.

Houston testified that defendant was holding a gun in his other hand and he pointed it towards the car. Weathers was standing between the car and defendant at that time. As defendant pointed the weapon, Weathers "pushed it." At this point, Houston was back in the car with the other individuals and they left the scene. As they were driving away, Houston heard two shots fired.

Weathers testified that on June 1, 2006, he drove his daughter to defendant's residence to pick up his grandson. Upon arrival, Houston exited the vehicle first and spoke to defendant. When Weathers heard defendant tell Houston that he would not give the child to her, Weathers got out of the car and asked defendant to give him the child.

Defendant hit Weathers in the face and Weathers hit him back. Weathers "threw two punches[,]" which caused defendant to "stumble[] and turn[] around, like he was going to fall." Weathers testified that defendant then "picked up a weapon" from "the grass[,]" which was "kind of high." Weathers described the weapon as "a long, black gun."

Upon seeing the weapon, Weathers "turned and ran." As he reached the corner, Weathers was shot in the back of his right leg. He fell to the ground and defendant and "some other people" came "running down the street[,]" and "jumped" him. Weathers heard defendant say, "This [is] for your daughter, it ain't over."

The sound of approaching police sirens caused the attacking group to disburse. Defendant was taken to the hospital where he eventually underwent surgery.

Later that evening, Police Detective James George spoke to Weathers at the hospital. Weathers was "highly medicated, but he was still awake . . . . He was a little groggy. So he was able to provide some information, but not a very clear and accurate detailed account of what had happened." George determined not to take a formal statement from Weathers at that time because of his medical condition.

At some point, Weathers was discharged from the hospital, came to police headquarters and identified defendant through a photo array. Based on that identification and as a result of his additional investigation, George issued a warrant for defendant's arrest for the shooting of Weathers.

On July 20, 2006, Police Detective Alfreddy Fletcher executed the arrest warrant at defendant's apartment. Defendant was sitting on a mattress when Fletcher encountered him. After placing defendant under arrest, Fletcher conducted a search; he looked under the mattress and found a .22-caliber rifle. The "rifle was immediately turned over to [the] [d]etective . . . who was the property in evidence detective for that day."1 Defendant testified. He stated that Houston, Weathers and three other individuals came to his residence to retrieve his son. Fights broke out among some of the individuals including Houston, defendant's sister and his girlfriend. Defendant described everyone as "hyped up," adding that Weathers started running away and "the crowd start[ed] following the fight."

Defendant stated he did not have a gun in his hand, that he was on the porch watching the fight. While on the porch, he heard "boom[,]" but he saw nothing. At that point defendant's girlfriend and some of the other individuals "came running back."

The police arrived shortly thereafter. Defendant testified that he never left his house and was there when the police arrived. Defendant stated he never went anywhere "near" the place where Weathers was shot, and had no idea who fired the shot. He denied having a gun and he did not see anyone else with a weapon or a gun going after Weathers.

On appeal, defendant raises the following two contentions for our consideration:

POINT I

 

THE TRIAL JUDGE, HAVING MISTAKENLY REGARDED THE SEIZURE OF THE WEAPON AT THE TIME OF DEFENDANT'S ARREST ON THE SHOOTING AS A PRIOR BAD ACT, ERRONEOUSLY GAVE A LIMITING INSTRUCTION, WHICH UNDER THE CIRCUMSTANCES OF THIS CASE, WAS CONFUSING AND INACCURATE, THEREBY DEPRIVING THE DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW (not raised below).

 

POINT II

 

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

Having reviewed these contentions in light of the record and controlling legal principles, we find no error warranting reversal.

Defendant's first claim of error stems from the fact that the firearm found under his mattress at the time of his arrest on July 20, 2006, was introduced at trial as the weapon defendant used to shoot Weathers on June 1, 2006. However, defendant does not contest the admission of that weapon into evidence on appeal, as he did below. Rather, he now criticizes the limiting instruction the trial judge gave the jury in connection with the admission of the weapon into evidence. The judge reiterated that limiting instruction in his final jury charge. Defendant did not object on either occasion. Therefore, this issue is raised as plain error. R. 2:10-2.

By way of background, we note that during pretrial proceedings, defense counsel objected to the State introducing into evidence the firearm found at the time of defendant's arrest. In pressing for the admissibility of that weapon, the prosecutor stated:

I believe many of the problems that defense counsel is pointing out only go to the weight of the evidence, which would be something that goes to the jury and let them decide if, in fact, the weapon found five weeks later was the weapon used on the day, June 1st, the day of the shooting.

 

. . . .

 

Now, as far as using the arresting officer, I don't intend his testimony to be used for purposes of admitting another bad act, but mainly to show that when they arrested [defendant] for this shooting, . . . he had in his possession or in his area a long-barreled rifle, which is consistent with the descriptions that the police had at that point.

 

Prior to Weathers' testimony before the jury, the judge held a hearing pursuant to N.J.R.E. 104 "on the issues with respect to the rifle found about five weeks after the incident." Weathers testified that he had an opportunity to see the weapon defendant held on June 1, 2006, and described it as a "long gun." He stated that the weapon was not a "handgun," and "[i]t could have been a rifle or a shotgun, something like that. I don't know guns, but I know it was long."

The prosecutor then confronted Weathers with the weapon seized at the time of defendant's arrest and asked, "Does this weapon look similar to the weapon that the defendant had on June 1st, 2006?" Weathers answered affirmatively, and when asked if he was "able to say that this is exactly the same weapon[,]" he responded: "That look[s] like the weapon. . . . That looks exactly like it." Upon questioning by the judge, Weathers reiterated that the State's exhibit "looks exactly like it." At the conclusion of Weathers' testimony, defendant argued that it would be

very prejudicial . . . if the jury knows that this black gun is the gun that [defendant] was found with when they arrested him on the warrant five weeks later.

 

[Counsel has] no objection to the State using this gun as a demonstrative gun and the victim saying, that looks like the gun, it could have been it. But when they hear that [defendant's] found with this particular gun, now we're beyond the prejudicial point, under the standard.

 

Citing State v. Cofield, 127 N.J. 328 (1992),2 and State v. Marrero, 148 N.J. 469 (1997),3 the trial judge determined that "the issue is whether the defendant possessed the gun. . . . So it is definitely relevant to a material disputed issue, that of identity, who the shooter was and who possessed the gun." The judge determined that he would "allow the State to introduce the evidence of the . . . rifle that was found on . . . July 20th, 2006," and decided that he had to

give a specific limiting instruction . . . to tell the jurors in no uncertain terms that if you find that this was not the rifle, you are to give it no weight. You're not to consider it. You cannot consider that the defendant may have had a gun five weeks after the incident as meaning that he's a bad person, meaning that he was predisposed to have a gun five weeks before.

 

It's still going to be the jury's province to determine . . . whether this defendant had that weapon on June 1st, 2006.

 

As noted, defendant did not object to this proposed limiting instruction.

Thereafter, at the end of the State's case, the judge instructed the jury as follows:

Ladies and Gentlemen, I neglected to instruct you on one matter just before the break. In this case the State has introduced evidence that the defendant was arrested in close proximity to a black rifle on July 20th, 2006, which Darr[e]n Weathers has identified as exactly like or the same as the rifle used in the alleged criminal activity on June 1st, 2006.

 

You must assess the credibility of Mr. Weathers' testimony in this regard under the witness credibility standards I'll give you at the end of this case, but normally such evidence is not permitted under our Rules Of Evidence. Our rules specifically exclude [sic] that a defendant has committed other crimes, wrongs or acts when it is offered only to show that he has a disposition or tendency to do wrong and, therefore, must be guilty of the charged offenses in this case.

 

Before you can give any weight to the evidence of rifle possession on July 20th, 2006, you must be satisfied that the defendant actually possessed the black rifle on July 20, 2006. If you're not so satisfied, you may not consider it for any purpose and you may disregard all testimony relating to the rifle's possession on July 20th, 2006.

 

However, our rules do permit evidence of other crimes, wrongs or acts when the evidence is used for certain specific narrow purposes. In this case, the rifle and the testimony regarding the rifle are to be used for the limited purpose of identity and possession. That is, the State has introduced a rifle to show you that the rifle allegedly possessed by the defendant on July 20th, 2006 was also in his possession on June 1st, 2006.

 

Here, the evidence has been offered to attempt to convince you that the rifle found on July 20, 2006 and the rifle used on June 1, 2006 are so similar that you may infer that the same person possessed the weapon on both dates. To make this inference, you must be convinced that the rifle found after the alleged crime is the same weapon or substantially similar to the weapon used during the crime.

 

Whether this evidence does, in fact, demonstrate the identity of the shooter is for you to decide in this case. You may decide that the evidence does not demonstrate the identity of the shooter and is not helpful to you at all. In that case, you must disregard that evidence, and allow it to have no bearing upon your deliberations. On the other hand, you may decide that the evidence does demonstrate identity. Then use it for that specific purpose.

 

However, you may not use the evidence of rifle possession on July 20, 2006 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 may have possessed a rifle on July 20th, 2006, he must be guilty of the present crimes that are under trial now.

 

I have admitted the evidence only to help you decide the specific questions of identity and possession. You may not consider it for any other purpose and may not find the defendant is guilty now of the crimes charged in this case simply because the State has offered evidence that he possessed a rifle on the later date.

 

The judge reiterated this charge in his final instructions to the jury.

Defendant now raises, as plain error, the contention that the trial judge erroneously regarded the admission of the rifle

 

 

as "other-crimes evidence" governed by N.J.R.E. 404(b). The crux of his argument is that

once the evidence was properly sanitized4 there were no "other crimes" before the jury. Therefore it did not merit a limiting - or any other type of - instruction. In this context the "limiting" instruction yielded a charge that was unnecessary, unclear, imbalanced and ultimately confusing to the jury. This error deprived defendant of a fair trial and due process of law . . . .

 

The rifle was not "othe[-]crimes" evidence; it was direct evidence connecting defendant to the shooting of Darren Weathers. . . . Weathers' testimony at the [N.J.R.E.] 104 hearing, in which he identified [the weapon] as at a minimum similar to the weapon used to assault him, resolved the relevancy issue.

 

Defendant argues that the challenged instruction "provided a detailed explanation of the State's theory of the case. But it never stated what the countervailing defense position was." Defendant's "position" was to challenge Weathers' ability to identify the rifle introduced into evidence as the weapon defendant used to wound him on June 1, 2006. Defendant vigorously pursued this line of argument in cross-examination of Weathers and in summation.

Plain error, in the context of a jury charge, is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

Generally, "[e]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." Ibid. However, when ultimately passing upon the propriety of a trial judge's instructions, we must examine the entire charge to see if it was improper or misleading in the context of the trial, with resulting prejudice to defendant. State v. Hipplewith, 33 N.J. 300, 317 (1960).

We are satisfied from our review of the instructions as a whole that no plain error is evident. The limiting instruction given to the jury at the conclusion of the State's case, and reiterated virtually verbatim in the judge's final instructions, neither confused the jury nor improperly highlighted the State's "theory of the case[,]" as defendant contends.

On this record, we discern no basis to conclude that this instruction was "clearly capable of producing an unjust result . . . ." R. 2:10-2. "It may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." State v. Macon, 57 N.J. 325, 333 (1971).

We turn to defendant's contention that his sentence is "manifestly excessive." Defendant "does not dispute his eligibility for an extended term" pursuant to N.J.S.A. 2C:44-3. As such, he faced sentencing on his second-degree aggravated assault conviction to a "term between ten and twenty years." N.J.S.A. 2C:43-7(a)(3). Defendant acknowledges that "[s]eventeen years is within this range[,]" but contends that it "is harsh and excessive, especially in light of the application of NERA, which mandates that [he] must serve at least [fourteen] years and six months."

Review of the sentencing transcript reveals that after the judge granted the State's motion for an extended term, he then proceeded to consider the appropriate term to be imposed. In arriving at the decision to impose a term of seventeen years on the second-degree aggravated assault count, the judge found:

This crime was a crime of violence. As far as second-degree aggravated assaults go, this was a very serious one. First, it involved a gun. Defendant shot a rifle at a man he knew as the victim was running away from him. . . . The bullet went through Weathers' femur, causing him to fall down on to [sic] the sidewalk as his bones cracked. The bullet fractured a kneecap, exited through the knee. Weathers was in the hospital some eight days with severe injuries; still limps to this day; made a good recovery, but still the bullet came close to severing the femoral artery . . . .

 

The judge found that defendant "represents a risk of re-offense[,]" noting that defendant's record showed "past marijuana and alcohol use since he was [thirteen] years of age. He's had sporadic employment. He's had violations of probation. There is an escape on his record." Noting further that the incident of June 1, 2006 "escalated from an argument . . . to a shooting in daylight on a crowded street[,]" the judge found that "defendant now has a propensity toward further dangerous conduct," thus supporting the finding of aggravating factor number three, the "risk that . . . defendant will commit another offense . . . ." N.J.S.A. 2C:44-1(a)(3).

The judge also found that aggravating factor number six, N.J.S.A. 2C:44-1(a)(6), applied because of "the seriousness of the offenses of which" defendant has been convicted in the past, the violations of probation and the fact that defendant was on probation at the time of the June 1, 2006 incident.

The judge also found aggravating factor number nine applied. N.J.S.A. 2C:44-1(a)(9). He noted that defendant's "sentence must serve specific and general deterrence." The judge observed that defendant's "crimes have escalated in violence[,]" and therefore, his "sentence must serve the need to protect the public."

Notwithstanding the judge's characterization of the second-degree assault as "a very, very serious" offense, he declined to apply aggravating factor number two, the "gravity and seriousness of harm inflicted on the victim[,]" N.J.S.A. 2C:44-1(a)(2), acknowledging that it "could potentially be double counting."

The judge found no mitigating factors applied and that "this is simply a case where the aggravating factors well preponderate over the mitigating factors." The judge concluded:

[W]hen you weigh the aggravating factors, three, six and nine, they're strong. They're very strong aggravating factors here. So I think that this sentence here should be near the top of the extended term range . . . . However, it should not be at the top because [defendant] did not show any significant violent tendencies prior to this incident.

 

The judge specifically rejected the possibility of imposing consecutive sentences on the weapons offenses under Indictment No. 06-10-3392, finding that one of those weapons was "linked up some five weeks later," to the charges stemming from the June 1, 2006 incident.

This review satisfies us that the trial judge engaged in a proper weighing and analysis of aggravating and mitigating factors in determining the length of defendant's sentence, separate and apart from his analysis supporting the grant of the State's motion to sentence defendant as a persistent offender. The judge first "review[ed] and determine[d] whether . . . defendant's criminal record of convictions render[ed] him . . . statutorily eligible[,]" and then proceeded to assess "the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public." State v. Pierce, 188 N.J. 155, 168 (2006).

"On appellate review, the court will apply an abuse of discretion standard to the sentencing court's explanation for its sentencing decision within the entire range." Id. at 169-70. "[A]n appellate court should not substitute its judgment for that of the lower court[;] . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). We will not "'second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). Where, as here, the trial judge "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]," we may not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations ommited.)

The trial judge did not misapprehend or misapply the statutory factors, and the factual findings underlying the judge's conclusions on the pertinent aggravating and mitigating factors are supported by the record. See State v. Roth, 95 N.J. 334, 363-64 (1984).

Affirmed.

1 The cocaine which was the subject of Indictment No. 06-11-3588 was also found during this search. However, all evidence relating to the cocaine was excluded from the trial testimony.

2 In Cofield, the Supreme Court held that under N.J. Evid. R. 55, the precursor to N.J.R.E. 404(b),

 

[t]he limited purposes for which other-crime evidence may be admitted include, but are not limited to, 'establishment of a common scheme or plan, a signature crime, motive, and most frequently, to impeach the accused who takes the witness stand . . . . [E]ven if the other-crime evidence is relevant to prove some legitimate trial issue, the trial court must still exclude it unless . . . its probative value outweighs its prejudicial impact.

 

[Cofield, supra, 127 N.J. at 336 (citations omitted).]

3

In Marrero, the Court reiterated that N.J. Evid. R. 55 "makes clear that other-crime evidence is only admissible if relevant to prove some other fact genuinely in issue. . . . In addition to being relevant to an issue genuinely in dispute, the other-crime evidence must 'be necessary for [the disputed issue's] proof.'" Marrero, supra, 148 N.J. at 482 (citations omitted).

4 By "sanitized" we presume defendant means that evidence of the weapon had been segregated from evidence of the narcotics seized at the time of defendant's arrest.