STATE OF NEW JERSEY v. JAMES BLACKBURN

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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4871-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BLACKBURN,

Defendant-Appellant.

__________________________________

November 5, 2010

 

Submitted: October 20, 2010 - Decided:

 

Before Judges Axelrad, R. B. Coleman and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-12-1507.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

 

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant James Blackburn appeals from his conviction and sentence. Following a four-day trial, a jury convicted defendant of second-degree aggravated assault as the lesser-included offense of attempted murder, N.J.S.A. 2C:12-1b(1) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count three); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count four); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count five).1

On May 23, 2008, the court merged count three with count one and sentenced defendant to a nine-year custodial term with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On counts four and six, the court imposed concurrent custodial terms of five years and eighteen months, respectively. On count seven, the court imposed a consecutive custodial term of eight years imprisonment with a five-year parole disqualifier. Appropriate fines and penalties were also imposed.

Defendant asserts the following arguments on appeal:

POINT I

THE JURY INSTRUCTIONS WERE DEFICIENT IN DEFINING "CIRCUMSTANCES MANIFESTING EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE" IN THE CHARGE REGARDING SECOND-DEGREE AGGRAVATED ASSAULT. (Not raised below).

POINT II

THE RECKLESSNESS ALTERNATIVE OF THE SECOND DEGREE AGGRAVATED ASSAULT STATUTE IS UNCONSTITUTIONALLY VAGUE. (Not raised below).

 

POINT III

THE TRIAL COURT ERRONEOUSLY FAILED TO CHARGE LESSER-INCLUDED OFFENSES. (Not raised below).

 

POINT IV

THE COURT ERRED IN FAILING TO PROVIDE A CLAWANS2 CHARGE REGARDING THE STATE'S FAILURE TO PRODUCE THE VICTIM AS A WITNESS AND IN PRECLUDING DEFENSE COUNSEL FROM ARGUING THAT THE STATE'S FAILURE TO ADDUCE THE VICTIM'S TESTIMONY INDICATED THAT THE CHARGES WERE NOT SUPPORTED. (Not raised below).

 

POINT V

THE PROSECUTOR MADE REMARKS ON SUMMATION WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not raised below).

 

POINT VI

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

We are not persuaded by defendant's arguments and affirm.

I.

The State presented the testimony of arresting officers Richard Latrecchia and Spencer Finch; Detective Charles Rokosny, who was responsible for canvassing the crime scene; Detective John Scully, who matched the spent shell casing to defendant's handgun; Dr. Franklin Vazquez, the surgeon who operated on the victim; Detective Robert Vogt, who recorded defendant's sworn statement the morning after the shooting; and Detective Kenneth Predmore, who was responsible for locating the victim and arranging his court appearance to testify against defendant. Defendant did not testify at trial or present any witnesses on his behalf.

The facts are generally not in dispute. On June 12, 2006, around 1 a.m., defendant and his friend, Raheem Gibson,3 and a girlfriend of Gibson's, were riding in a car on Rosa Parks Boulevard in Paterson, New Jersey. Defendant was carrying a .380 caliber, semi-automatic handgun loaded with three rounds. At about 2:30 a.m., as they were driving, Gibson observed the victim, Ronald Coley, standing with another man along the side of the road. After recognizing Coley as the man who had previously robbed a relative of his, Gibson parked around the corner. The woman remained in the car. Gibson and defendant then exited the vehicle and walked towards Coley. As the two men approached Coley and the man standing near him, Gibson confronted Coley about robbing his relative. Coley then lunged forward and attempted to grab Gibson by the neck. Defendant drew the handgun and fired a single round, striking Coley in his lower back, and both Gibson and defendant left the scene. The victim survived the shooting but a bullet had shattered his left kidney, perforated his large intestine, and exited his right side. Coley required surgery to remove the shattered kidney and a portion of his large intestine.

Officers Latrecchia and Finch happened to be nearby, heard the shot, accelerated in that direction, and observed two men walking towards them on the sidewalk. One of the men was defendant and the other was Gibson. One of the men informed the officer that a man had been shot a few blocks away. The officers observed the victim on the ground, attempting to rise to his feet. Coley declared, "they shot me," and pointed towards the two pedestrians whom the officers had just encountered. Officer Latrecchia turned and made eye contact with the men, at which point they began to run.

Gibson reached his car first, and his girlfriend who had been sitting in the driver's seat sped off and left defendant behind. Officer Finch grabbed defendant as he attempted to scale a nearby fence. When Finch moved toward the handgun that defendant had removed from his waistband and tossed to the side, defendant fled. Defendant resisted the officer's efforts to handcuff him until the other officer sprayed mace in his face. Officer Finch then retrieved the gun that defendant had tossed. A .380 cartridge was later retrieved from the scene and forensic testing matched the cartridge to defendant's handgun.

Defendant was taken to police headquarters where he was read his Miranda4 warnings and completed a written statement in which he admitted shooting Coley, but claimed he had done so out of fear that Coley and the man standing next to him might "do something first to us." Defendant stated he had not intended to shoot Coley and that the shooting was accidental, occurring as a result of his nervousness. Following the Miranda hearing, the court found defendant had voluntarily and knowingly waived his rights and held the statement to be admissible at trial.

Pertinent to this appeal, Detective Predmore explained on cross-examination that although he was able to serve Coley with a subpoena to testify, the victim failed to appear at trial. The detective further explained that the State did not attempt to secure Coley's testimony by enforcing the subpoena because Coley "had been victimized enough". In light of Coley's absence, the State requested that defense counsel be precluded in summation from commenting on the reasons why the State chose not to enforce the subpoena. Defense counsel indicated he agreed with the State, and only intended to raise the issue of Coley's failure to appear in order to argue defendant was denied his constitutional right to confront his accusers. Defense counsel further consented to not suggest to the jury the State was "trying to hide something" by not forcing Coley to testify. The court held that because no evidence was presented that the State had any other reason for not producing Coley than sparing him further aggravation, defense counsel was precluded from arguing the State chose not to provide the victim's testimony because it had something to hide. However, the court held defense counsel was at liberty to inform the jury about Coley's deliberate decision not to testify.

Given the contents of defendant's inculpatory statement, defense counsel conceded to the jury that defendant had shot Coley but argued the shooting was either excusable self-defense or accidental. The jury acquitted defendant of attempted murder but convicted him of the lesser-included offense of second-degree aggravated assault. Defendant was also convicted of three firearms possession charges and resisting arrest.

II.

We note at the outset the language of Rule 2:10-2, which provides that any error 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." Under this standard, "not 'any' possibility can be real enough for a rerun of the trial. The possibility 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." State v. Macon, 57 N.J. 325, 336 (1971). In light of the strong evidence of defendant's guilt presented to the jury, we find none of the trial errors of which defendant now complains sufficient to meet this standard.

The lesser-included offense of second-degree aggravated assault is established by proof that a defendant "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J.S.A. 2C:12-1b(1). Defendant now argues that in the jury instructions relating to this offense, the court improperly defined the phrase "under circumstances manifesting extreme indifference to the value of human life" as conduct that "resulted in a probability as opposed to a mere possibility of serious bodily injury." Defendant concedes that Judge Marmo accurately recited the definition of this phrase as provided in the Model Jury Charges (Criminal), "Aggravated Assault-Serious Bodily Injury" (2005). Defendant argues the Model Jury Charge language is not supported by persuasive authority and, consequently, the court instead should have defined the phrase as "a pronounced or unusual or violent failure to accord any importance or value to human life," pursuant to State v. Mara, 253 N.J. Super. 204 (App. Div. 1992) and State v. Farrell, 250 N.J. Super. 386 (App. Div. 1991).

We find no error, let alone plain error, in the jury instruction on second-degree aggravated assault. Contrary to defendant's argument, our opinions in Mara and Farrell do not support defendant's position. We held that in examining "the elusive phrase 'under circumstances manifesting extreme indifference to human life' . . . the degree of recklessness must be determined from all the surrounding circumstances" and that "[t]he ultimate question for the factfinder is whether the [offense] was committed under circumstances involving a mere possibility of death or did the circumstances involve a probability of death." State v. Pindale, 249 N.J. Super. 266, 282 (App. Div. 1991) (first alteration in original) (citation omitted). In Mara and Farrell the trial court considered the "surrounding circumstances" involved with each offense and applied similar standards when describing "under circumstances manifesting extreme indifference to the value of human life" as were provided in the instruction here by Judge Marmo.

In Mara, supra, for example, the defendant was charged with second-degree aggravated assault for inflicting serious injury to the victim by driving under the influence, colliding with the victim's car, which hurled the victim approximately sixty-feet, and failing to stop to administer assistance. 253 N.J. Super. at 208-09. The court found that "[a] person who drives a motor vehicle while intoxicated, consciously disregards the risk of an accident and therefore acts with indifference to the value of human life," especially where "defendant did not attempt to slow down before the accident and [] did not stop or attempt to obtain assistance for the victim." Id. at 213-14. The court's definition of the term, in consideration of the surrounding circumstances, was similar in Farrell, supra, where the defendant was charged with striking the victim's head with an aluminum bat and the court defined the term as "conduct that indicates that life does not matter . . . a pronounced or unusual or violent failure to accord any importance or value to human life." 250 N.J. Super. at 390-91 (alteration in original).

Taking into consideration the surrounding circumstances of this offense, i.e., where a defendant aimed a loaded handgun at the victim's lower back and pulled the trigger, the court's use of the Model Jury Charge is appropriate and consistent with the charges given in the cited cases.

Defendant alternatively argues, again for the first time, that the reckless alternative of the afore-discussed aggravated assault statute was unconstitutionally vague as applied in this case. More particularly, defendant contends the phrase "under circumstances manifesting extreme and difference to the value of human life" was facially incapable of application by defendants and law enforcement officers alike because persons of common intelligence are left to guess at its meaning. We deem this argument to be of insufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).

The victim was shot at close range by defendant and suffered the permanent injury of having his kidney and a portion of his intestine removed. In addition to second-degree aggravated assault under N.J.S.A. 2C:12-1b(1) ("serious bodily injury"), the judge reluctantly charged the third-degree offense under N.J.S.A. 2C:12-1b(7), i.e., "significant bodily injury." Defendant neither requested the court to charge fourth-degree aggravated assault for recklessly causing bodily injury to another with a deadly weapon, N.J.S.A. 2C:12-1b(3), as a lesser-included offense of attempted murder, nor objected when that charge was not given.

"[A] trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense," State v. Jenkins, 178 N.J. 347, 361 (2004), and must charge lesser-included offenses which are rationally supported by the evidence. State v. Reddish, 181 N.J. 553, 626 (2004). As the facts here provide no support for the lesser-included offense now suggested by defendant, there was no error committed by the trial court in this regard.

Defense counsel acknowledged at trial that the Clawans charge was inapplicable based on the victim's failure to appear, and provides no valid explanation on appeal as to why the charge should have been given. The detective who had served Coley testified he did not seek a bench warrant because he felt Coley had been victimized enough, having lost his kidney as a result of the shooting. The record is devoid of any evidence from which defendant could have argued the State deliberately failed to order the victim's appearance. Moreover, defendant could have moved under Rule 3:26-3 for the court to enforce the subpoena if he felt the victim's testimony would assist his defense. With Coley's absence, however, defense counsel was able to suggest in summation that Coley was a drug dealer out at 2:30 a.m. plying his trade and to claim that Coley could have been armed and was the initial aggressor. Had Coley appeared and testified consistent with his prior statement, however, the jury would have learned that as Gibson approached Coley, defendant went behind him and shot him in the back. That testimony would have been entirely consistent with the medical testimony demonstrating the shooter was behind the victim and quite close in proximity to him.

Defendant further argues, as plain error, that the following comments by the prosecutor on summation were improper and deprived him of a fair trial:

Do what you think is right. Reach the verdict you think is right [a]nd just the most important thing is that:

 

1) You reach a verdict consistent with the evidence. And --

 

2) You tell [defendant] what he did to Ronald Coley is not okay . . . .

We reject this argument. It is well settled that whether objected to or not, prosecutorial misconduct constitutes grounds for reversal of conviction only if so egregious as to have deprived the defendant of a fair trial. See, e.g., State v. Josephs, 174 N.J. 44, 124 (2002); State v. Koskovich, 168 N.J. 448, 489 (2001); State v. Smith, 167 N.J. 158, 181-82, 185 (2001). We see nothing in the remark in question, particularly considering the proofs offered at trial and in the context of the summation as a whole, that could be characterized as egregious. Contrary to defendant's assertion, we do not find these comments akin to the "send a message" exhortation in a prosecutor's summation that we have held to be improper. See, e.g., State v. Rose, 112 N.J. 454, 521 (1988); Jackowitz v. Lang, 408 N.J. Super. 495, 505-06 (App. Div. 2009); State v. Hawk, 327 N.J. Super. 276, 282-83 (App. Div. 2000).

Defendant also challenges his sentence as excessive, specifically asserting the imposition of consecutive terms for aggravated assault and possession of a weapon by a convicted felon was an abuse of the court's sentencing discretion under State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). According to defendant, defendant's possession of a handgun under his status as a convicted felon arose out of the same conduct as the other offenses, was not predominantly independent of the other offenses, did not involve separate acts of violence or multiple victims, and defendant's offenses were not numerous. See ibid.

We are satisfied the judge did not abuse his discretion in imposing consecutive sentences on defendant's convictions. Based on credible evidence in the record, the certain persons offense was separate and distinct from the aggravated assault offense as the conduct occurred at different times. See State v. Roth, 95 N.J. 334, 363-64 (1984). Defendant, a convicted felon, did not engage in a continuous act when he met up with Gibson around 1:00 a.m. while carrying a loaded semi-automatic handgun, and almost an hour and a half later, when Gibson chanced upon Coley, defendant shot Coley at close range in the back.

Affirmed.

1 Prior to trial, the State advised that it would not prosecute second-degree aggravated assault, designated as count two, because it was a lesser-included offense of count one, and also would not prosecute third-degree burglary, designated as count five. The court indicated these counts would not be presented to the jury and the indictment would be renumbered accordingly.

2 State v. Clawans, 38 N.J. 162 (1962).

3 At times Gibson is referred to by his nick-name "9-11."

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