STATE OF NEW JERSEY v. OMAR LEWIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3862-07T43862-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR LEWIS,

Defendant-Appellant,

________________________________

 

Submitted May 19, 2010 - Decided

Before Judges Fisher, Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0104.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Leslie-Ann M. Justus, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals his convictions and the sentence imposed stemming from charges of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (Count One); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (Count Two); first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (Count Three); first-degree felony murder, N.J.S.A. 2A:11-3(a)(3) (Count Four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Five); and unlawful possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Six). We affirm the convictions but remand for the entry of an amended judgment to reflect that the robbery sentence shall be served concurrently with the sentence imposed on the murder conviction.

The evidence presented at trial pertinent to this appeal discloses that during the evening of March 13, 2005, around 9:00 p.m., defendant, along with two of his friends, wanted to rob someone, so they went outside where they encountered the victim, who was carrying a bag. Although defendant was not the first to strike the victim, he joined in the attack and pulled out a zebra-print knife that he used to stab the victim. He was unable to remove the knife, which was left in the victim's body and recovered by the police. When people in the neighborhood started to come outside in an apparent response to the victim's pleas for help, defendant and the other attackers fled in different directions.

One month later, defendant reported to police that he had been attacked by a friend, Richard Green (Green), who took his cell phone, and that another friend, Troy Keets (Keets), had witnessed the incident. Police had an opportunity to speak to Keets about defendant's allegations while he was being detained on an unrelated drug charge. When questioned about the alleged robbery of defendant, Keets blurted out that he did not understand why "Omar" was accusing Green of taking his cell phone when Omar "had a body on him," which the investigating officer understood to mean that defendant had killed someone. Keets told police that defendant and others had robbed a "Spanish guy" on Madison Avenue and, in the process, defendant had stabbed the man and left the knife sticking in his body. The investigating officer reached out to Plainfield Detective Jean Rene Calvin, who was investigating the stabbing, and he interviewed Keets.

Detective Calvin's investigation led him to other witnesses, including Marquice Ragland (Ragland), Elvis Offray (Offray) and Offray's then fifteen-year-old girlfriend, Johanna Torres (Torres). The investigation disclosed that on the evening of the stabbing, Offray and Torres were at the home of J.M. J.M., his mother's paramour, Keith Carson (Carson), and defendant were also present, discussing that they wanted to rob someone. The group went outside where Offray and Torres witnessed the attack upon the victim, but did not see the actual stabbing. Offray recalled seeing defendant kneeling over the victim and making a stabbing motion, but did not see a knife or the actual stabbing. According to both Offray and Torres, when they all returned to J.M.'s house, defendant told the group that he thought he had stabbed the victim.

Ragland, a former high-ranking member of the Bloods, testified that he ran into defendant within days of the stabbing while he was outside a local liquor store sitting in a Jeep. Defendant approached the vehicle and told him that he wanted to be a Blood and that he had "put in some work" a few nights before. Defendant told him that he had wanted to rob a Mexican guy and stabbed him.

Co-defendant J.M., who was fifteen years old at the time of the stabbing, testified at trial on behalf of the State in exchange for an agreement that he would be prosecuted as a juvenile. He received a six-year sentence for his role in committing the offenses. He testified that after returning to his home following the robbery, defendant told the group that he thought he had stabbed the victim.

Police subsequently arrested defendant, and once in custody, he waived his Miranda rights. He told police that on the evening of the incident he was at Offray's home, along with Torres, and that they then went to J.M.'s house where they all talked about needing money. Carson came in and said he was going to the store and they should come with him. As they were walking on Madison Avenue, they saw a "Spanish dude" carrying groceries. Carson swung at the man, causing his groceries to spill. Carson got angry that the man did not fall, so Carson picked him up and slammed him into the ground four or five times. Defendant characterized the events that followed as "like follow the leader," with all of them beating on the man. Defendant told the jury that the victim was screaming in Spanish and "[t]hat is when I pulled my knife out and tried to get everyone off of him. I guess they were not focused on me. That is when I stabbed him by mistake." He explained that when he tried to pull the knife out of the victim's body, he lost his grip and could not pull it out. Defendant described the knife as "zebra-colored" with jagged teeth, and said that Offray and Torres knew he had the knife because they had been with him when he purchased it at the Plainfield Plaza two or three days earlier.

After the stabbing, they ran in different directions but all returned to J.M.'s house. Although defendant did not see anyone go through the victim's pockets, he recalled Carson saying that the victim "didn't have anything," which he took to mean he did not have any money. Defendant told the others that he had stabbed the man "by mistake." The next day, Carson said that if he got "locked up" because any of them had talked about the incident, he was going to "call his people and send them on us."

Defendant admitted in his statement that in a conversation in front of the liquor store, he told Keets and Green that he was scared because he had stabbed someone and that he had left the knife in the body. After giving the oral statement, the officers videotaped defendant reading the statement. In addition to what he said in the oral statement, defendant said on tape, "I want to apologize to his family that I didn't mean -- I ain't mean to do it. It was just an accident. If y'all could just please forgive me." At this point during the questioning, defendant cried. Defendant signed a photograph of the knife recovered from the victim's body, identifying it as his.

Defendant testified on his own behalf and denied stabbing the victim or being present at the scene on March 13, 2005. He recalled that March 13 had been a special day because he was home with his family decorating the house and fixing his computer. His family ate pizza and watched a movie together, which was something they had done for the first time in many years. He told the jury that when he was arrested, he had "no clue" what it was about. At the police station, the police told him that they had five people who told on him so he might as well confess, and then in two weeks, he would be able to go home. The police told him he had better talk or they would "F him up." He repeatedly requested his mother or the presence of a lawyer, to no avail. The police wrote little notes about what he was supposed to say, he read them, and then the typist typed his words. The police made him read the statement on videotape, as the detective whispered in his ear what to say. The police told him to say it was an accident to make him look better. He complied with all of these directions because he had heard about detectives hitting and beating people and planting drugs, and he was scared. He cried on the tape because the police forced him to tell lies and because someone had died. He was forced to sign the photograph of the knife.

The jury convicted defendant of all charges in the indictment except possession of a weapon for an unlawful purpose. At sentencing, the court merged the conspiracy to commit armed robbery into the first-degree robbery, and then imposed the following sentence: (1) life imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder conviction; (2) a twenty-year term with a seventeen-year period of parole ineligibility pursuant to NERA on the robbery conviction, to run consecutive to the sentence for the murder conviction; (3) a concurrent thirty-year term on the felony murder conviction; and (4) a concurrent eighteen-month term of imprisonment for the unlawful possession of a weapon conviction. The present appeal followed.

Defendant raises the following points for our consideration:

POINT I

THE REFERENCES TO DEFENDANT'S MEMBERSHIP IN THE BLOODS STREET GANG WERE IRRELEVANT AND HIGHLY PREJUDICIAL AND ADMITTED IN VIOLATION OF N.J.R.E. 404(b). ALSO, THE FAILURE OF THE JUDGE TO DELIVER A LIMITING INSTRUCTION DEPRIVED DEFENDANT OF A FAIR TRIAL.

A) THE EVIDENCE OF DEFENDANT'S ASSOCIATION WITH THE BLOODS STREET GANG SHOULD NOT HAVE BEEN ADMITTED.

B) THE COURT'S FAILURE TO GIVE A LIMITING CHARGE ON THE USE OF THE N.J.R.E. 404(b) EVIDENCE DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT II

THE PROSECUTOR VIOLATED THE WITNESS-ADVOCATE RULE AND IMPROPERLY VOUCHED FOR AND BOLSTERED THE CREDIBILITY OF THREE OF THE STATE'S KEY WITNESSES. (NOT RAISED BELOW).

POINT III

BECAUSE THE JURORS HAD ALREADY REACHED AN ADVANCED STAGE OF DELIBERATIONS, THE REPLACEMENT OF A DELIBERATING JUROR WITH AN ALTERNATE JUROR VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, [ ] 1, 9, 10. (NOT RAISED BELOW).

POINT IV

THE JURY INSTRUCTION ON DEFENSE OF OTHERS COMPLETELY OMITTED ANY REFERENCE TO THE BURDEN OF PROOF, THEREBY REQUIRING REVERSAL OF DEFENDANT'S MURDER CONVICTION. (NOT RAISED BELOW).

POINT V

THE JURY INSTRUCTION ON DEFENSE OF OTHERS COMPLETELY OMITTED ANY REFERENCE TO THE BURDEN OF PROOF, THEREBY REQUIRING REVERSAL OF DEFENDANT'S MURDER CONVICTION. (NOT RAISED BELOW).

POINT VI

THE TRIAL COURT ERRED BY FAILING TO PRONOUNCE AT THE SENTENCING HEARING THAT DEFENDANT'S LIFE TERM OF IMPRISONMENT WAS SUBJECT TO NERA. MOREOVER, THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING A LIFE TERM PLUS [TWENTY] YEARS OF IMPRISONMENT, ALL SUBJECT TO NERA, ON THIS [TWENTY-ONE-YEAR-OLD] DEFENDANT.

We have considered the points raised in light of the record, briefs submitted and applicable legal principles. We are satisfied that none of these arguments are sufficiently meritorious to warrant reversal of the convictions and sentence imposed.

I.

In his first point, defendant contends the trial judge erred in denying his application to disallow any references to "gang affiliation or gang involvement or possible motivation for any of what's allegedly occurred being related to gang activity." The State sought to introduce this evidence based upon Ragland's statement to police that he believed that as a high-ranking member of the Bloods, defendant was trying to impress him in an effort to become a member of the Bloods. The court ruled that this testimony was proper evidence of other wrongs under N.J.R.E. 404(b) (Rule 404(b)) because defendant had "already stated in his written and videotaped statements that this was an accident. So it goes definitely to counteract that position that your client has taken and it also goes to prove motive and opportunity."

Evidence of other wrongs admitted under Rule 404(b) is highly prejudicial in a criminal trial because it has the potential to result in a defendant's conviction based upon a jury's belief that defendant is a bad person irrespective of the evidence before it. State v. Ramseur, 106 N.J. 123, 265 (1987). It is a rule of exclusion rather than inclusion, and admission of this evidence requires the State to first satisfy the factors set forth in State v. Cofield, 127 N.J. 328, 338 (1992): (1) the evidence sought to be introduced must be relevant to a material issue; (2) the evidence must be similar in kind and reasonably close in time to the offense charged; (3) the evidence of the other wrongs must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its apparent prejudice. Cofield, supra, 127 N.J. 338.

Where other wrongs evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to a determination of whether its probative value is outweighed by its unduly prejudicial nature under N.J.R.E. 403. State v. Marerro, 148 N.J. 469, 482 (1997). Admissibility of evidence pursuant to Rule 404(b) is reviewed under an abuse of discretion standard. State v. Darby, 174 N.J. 509, 518 (2002). However, where a trial court does not engage in a Cofield analysis, such as occurred here, our review is de novo, without deference accorded to the trial court's decision. State v. Darby, 174 N.J. 509, 518 (2002).

Here, the State did not advance defendant's desire to become a member of the Bloods as defendant's motive for the robbery and stabbing. Still, his statement to Ragland had probative value regarding a material issue because it contradicted defendant's claim that the stabbing was accidental. Turning to the other Cofield factors, the stabbing and the boast were sufficiently close in time. If the jury believed Ragland, who testified as to his first-hand knowledge of the statements, the evidence satisfied the clear and convincing standard. Finally, the impact of any prejudice occasioned by the Blood reference is minimal in light of the compelling evidence of guilt.

J.M., Offray and Torres testified that defendant was present, participated in the attack and, immediately after the incident, admitted that he left a knife in the victim. Witnesses also identified the knife as belonging to defendant. Defendant confessed to stabbing the victim, claiming it was an accident, and admitted that the knife recovered from the victim's body was his. Keets and Ragland testified that defendant told them that he had stabbed someone, killing the person. Consequently, there was no danger that the jury convicted defendant simply because the other wrongs evidence persuaded them that defendant was a bad person or predisposed to criminality.

Defendant did not ask the court to give a limiting instruction at the time of the court's ruling, when Ragland gave this testimony or prior to the jury charge. No objection was made as to the omission of any limiting instruction from the charge to the jury as required by Rule 1:7-2. We are satisfied that, in light of the compelling evidence of defendant's guilt, this omission did not have the capacity to produce an unjust result.

II.

During the course of questioning a number of the State's witnesses, defendant claims the prosecutor vouched for the credibility of the witnesses and became a witness advocate for them. For example, when questioning Offray, the prosecutor asked, "What was the thing I wanted you to do[,]" to which Offray answered, "Tell the truth." The colloquy continued:

Q: Did you change some details that we discussed about your statements that you had given to the police?

A: Yes.

Q: And that's where this statement that's been marked D-2 comes from, right? We sat down and talked about all the different --

A: Yes.

Q: And anything that wasn't accurate we changed it, right?

A: Yes.

Q: In fact, one of the things that I asked you about was whether or not you had actually seen the knife; is that right?

A: Yes.

Q: And you told me that you didn't actually see the knife go into the victim's body, right?

A: Yes.

Q: And we talked about that and that's your testimony today. Is that right?

A: Yes.

Q: And that's part of that statement that they just referred to that's marked D-2, right?

A: Yes.

When Ragland took the stand, the prosecutor, through the questions posed, established that the two of them had met twice and that neither the prosecutor nor anyone else had made any promises concerning Ragland's pending criminal charges. Defendant urges that the following colloquy was particularly objectionable:

Q: And with regard to that[,] did you tell me at some point that you were concerned for your safety if you came to testify?

A: Yes, I did.

Q: And did I, in fact, tell you that I would notify authorities in whatever state prison you happened to be in that you had testified to avoid having that happen?

A: Yes.

Similarly, during the direct examination of Keets, the prosecutor asked if they had met before and whether he had promised Keets anything in exchange for his testimony. He asked Keets, "And when I met with you, did I force you to say anything or did I ask you to fix your testimony in any way[,]" to which Keets replied, "No, sir."

The defense raised no objection to this line of questioning during the trial. Hence, a fair inference to be drawn from the absence of any objection is that the claimed error "was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Macon, 57 N.J. 325, 333 (1971)). Because no objection was raised, we review the claimed error under the plain error standard. R. 2:10-2. Plain error is one that "grievously affect[s] the substantial rights of the defendant as to convince [the court] that [it] possessed a clear capacity to bring about an unjust result." State v. Hipplewith, 33 N.J. 300, 309 (1960). We conclude no such error occurred here.

The prosecutor's questioning at no time ventured near impermissible advocacy in the prosecution of this matter. The questioning did not vouch for the credibility of the witnesses. The questioning attempted to present the context in which the prosecution met with the witnesses and to highlight that none of the witnesses were beholden to the State. Likewise, the nature of the questioning did not trigger the likelihood that the prosecutor would become a witness. The interest in the outcome of the case on the part of the witnesses who testified bore directly on their credibility, and the prosecutor's testimony was not necessary to address this issue.

III.

Next, defendant claims he was denied due process and a fair trial when the court replaced a deliberating juror who called out sick. Because both the defense and the State agreed to replace the juror with an alternate juror, defendant, on appeal, cannot challenge the very procedure he sought and urged. State v. Pontery, 19 N.J. 457, 471 (1955).

IV.

The court did not commit reversible error when it failed to instruct the jury on the burden of proof for the affirmative defense of "use of force for the protection of others, N.J.S.A. 2C:3-5." Although defendant did not request this instruction, in view of defendant's statement to police that he pulled out a knife to get the other persons off the victim, the State requested the instruction. We therefore review this claimed error under the plain error standard as well. R. 2:10-2.

When a defendant raises the affirmative defense of the use of force for the protection of another person, the defendant bears the burden of producing some evidence to support it, although once raised, the State bears the ultimate burden of persuasion beyond a reasonable doubt. Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:2C:3-1 (2009). "[T]he trial court is required to instruct on defense of another if there is a rational basis in the record to support it." State v. Josephs, 174 N.J. 44, 102 (2002).

Here, beyond his statement to police, which he later disavowed, that he pulled out the knife to get the others off the victim and then accidentally stabbed him, he presented no evidence that would rationally support an instruction on this affirmative defense. Therefore, there was no plain error in the court's failure to instruct on the burden of proof.

V.

We find no error in the court's failure to instruct the jury that in considering the voluntariness of defendant's statement to police, they could consider the fact that the investigating officers failed to make an electronic recording of their interrogation of him. This instruction is required by virtue of our Supreme Court's adoption of Rule 3:17(a) in October 2005, which now mandates that "all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with murder . . . ." Rule 3:17(d) states that "[t]he failure to electronically record a defendant's custodial interrogation in a place of detention shall be a factor for consideration . . . by the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement."

Defendant acknowledges that Rule 3:17 was not adopted until October 2005, and did not go into effect for homicides until January 1, 2006. Because this interrogation took place in June 2005, it was not subject to the new rule. At the time of his interrogation, applicable law provided that a statement to police arising out of a custodial interrogation is not inadmissible merely because the statement was unrecorded. State v. Cook, 179 N.J. 533, 560 (2004).

VI.

Finally, defendant challenges the sentence imposed on several grounds. He claims that the overall sentence was excessive, the court failed to understand that his sentence on the murder conviction was subject to a seventy-five-year period of parole ineligibility, and failed to undertake the appropriate analysis for imposition of the consecutive sentence on the first-degree robbery conviction. Other than imposition of a consecutive sentence on the robbery conviction, the remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The Supreme Court's decision in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), guides trial courts in determining whether multiple sentences should be served concurrently or consecutively and articulated the following factors for consideration:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominately independent of each other;

(b) the crime involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]

[Yarbough, supra, 100 N.J. at 643-44.]

In imposing a consecutive sentence on the robbery conviction, the trial judge explained "one can commit a murder without committing a robbery and they're distinct offenses. And Count 3[,] obviously somebody can commit a robbery without committing a murder. So they're separate and distinct offenses." While this statement is correct, we agree with defendant that the robbery and murder offenses were "inextricably interrelated" and were therefore not predominantly independent of each other. The commission of these two offenses was part of the same event, involved the same victim, and there was no identifiable lapse in time between the commission of the two offenses. We therefore conclude the trial court mistakenly exercised its discretion in imposing the consecutive sentence for the robbery conviction and vacate that part of the sentence imposing a consecutive sentence on the robbery conviction (Count Three). We remand for the entry of an amended judgment to reflect that the robbery sentence shall be served concurrently with the sentence imposed on the murder conviction.

 
Affirmed in part and modified in part. We do not retain jurisdiction.

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

In his oral decision, the judge erroneously stated that the period of parole ineligibility was thirty years, but the judgment of conviction correctly noted that the life sentence was subject to NERA.

Points IV and V are the same, but within the body of the brief, different arguments are advanced.

(continued)

(continued)

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A-3862-07T4

August 31, 2010