STATE OF NEW JERSEY v. JULIUS DAVIS

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5090-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIUS DAVIS,

Defendant-Appellant.

_____________________________________________________________

 

Submitted March 17, 2010 - Decided

Before Judges Graves and J.N. Harris.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-04-0481.

James S. Friedman, LLC, attorneys for appellant (James S. Friedman, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In August 2003, a Mercer County grand jury returned an indictment charging defendant Julius Davis with first-degree aggravated manslaughter in violation of N.J.S.A. 2C:11-4(a) (count one); second-degree possession of a handgun for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (count two); and third-degree possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b) (count three). On April 12, 2006, the grand jury returned a superseding indictment charging defendant with the same offenses charged in the first indictment. Both indictments also charged co-defendant, Andre Jones, under counts one and two. According to the State, the superseding indictment was necessary because several witnesses changed or added to their statements shortly before trial on the first indictment, "which complicated presentation of the case."

Prior to trial, defendant moved to dismiss the superseding indictment, arguing that he was denied his right to a speedy trial. On September 22, 2006, the court heard and denied defendant's motion. Defendant proceeded to trial and on September 27, 2007, a jury found him not guilty of possession of a handgun for an unlawful purpose, but guilty of aggravated manslaughter for recklessly causing the death of Rasheeda Hightower under circumstances manifesting an extreme indifference to human life and possession of a handgun without a permit. The court sentenced defendant to a twenty-year prison term for aggravated manslaughter, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent four-year term for possession of a handgun without a permit.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT'S FAILURE TO GRANT DAVIS'[S] MOTION TO ACQUIT AT THE CONCLUSION OF THE STATE'S CASE CONSTITUTES REVERSIBLE ERROR.

POINT II

THE TRIAL COURT'S DENIAL OF THE SPEEDY TRIAL MOTION CONSTITUTES REVERSIBLE ERROR.

POINT III

THE TRIAL COURT'S DENIAL OF THE NEW TRIAL MOTION CONSTITUTES REVERSIBLE ERROR.

POINT IV

THE TRIAL COURT SHOULD HAVE EITHER GRANTED [DEFENDANT'S] SENTENCING MOTION OR, ALTERNATIVELY, SHOULD HAVE SENTENCED DAVIS TO A SHORTER TERM WITHIN [THE] FIRST DEGREE RANGE.

After considering these arguments in light of the record, the briefs, and the applicable law, we are satisfied they do not warrant extended discussion in a written decision. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

On April 29, 2002, at about 11:30 p.m., Detective James McMillan (McMillan) of the Trenton Police Department was dispatched to a residence on Houghton Avenue based on a report that a woman had been shot. When McMillan arrived, he observed seventeen-year-old Rasheeda Hightower lying on the ground. She had suffered a fatal gunshot wound to the head. Several police officers were also present, and McMillan was advised that Rashaad Williams (Williams), the victim's brother and a witness to the shooting, was in custody in the back of a patrol vehicle. McMillan testified that Williams was "violently upset and acting out, and it was determined that he needed to be placed in custody in order to get some kind of control over him."

The officers canvassed the area for witnesses and transported several witnesses to police headquarters to be interviewed. Following the initial investigation, two suspects were identified, defendant and his cousin, co-defendant Andre Jones.

After obtaining an arrest warrant for Jones, the police took him into custody and advised him of his Miranda rights. He waived his rights and agreed to provide a statement to the police. However, McMillan subsequently learned the information Jones provided was not entirely accurate and two days later, when he questioned Jones again, Jones provided a second statement. In his second statement, Jones said he believed his cousin fired a gun into the air to clear the crowd so he and Williams could have a "straight up fight." However, at trial, Jones acknowledged he did not want to testify against his cousin, and he claimed he was "under a lot of pressure" when he gave his statements to McMillan.

During the trial, Cicely Jackson, Williams's girlfriend, testified she lived on Houghton Avenue with Williams and her two children when the shooting occurred. Jackson explained that several people were at her home at the time: Rasheeda Hightower (the victim), and her brother, Rashaad Williams; Jackson's two children; a neighbor named Rory; Jackson's two brothers; and two friends of Williams. Jackson also testified that prior to the shooting, the adults were drinking beer, smoking marijuana, and using cocaine.

In addition, Jackson testified that at about 9:40 p.m., Rory told her to go outside because Williams was arguing with Jones, defendant's cousin. When the argument between Williams and Jones escalated into a physical altercation, Jackson's brothers "jumped in the fight." The fight ended when Jones got in his car and drove off stating, "I'll be back."

According to Jackson, Rory then obtained "a little silver rusty gun" and "brought it to the house," but its "barrel was broken" so Williams tried to fix it. About twenty minutes later, Jones returned while Williams was on the porch. Williams jumped off the porch with the gun and aimed it at Jones, but "the barrel fell out" and the two men began fighting again. When Jones seemed to be getting the upper hand, Rasheeda Hightower started punching Jones and Jackson's two brothers joined the fight as well.

Jackson testified she saw defendant watching the fight and when she realized he had a gun in his right hand, she yelled, "run, that's his cousin, he got a gun, run." At that point, according to Jackson, defendant "just started shooting the gun." When Jackson was asked to describe how defendant was holding the gun, she stated he was "pointing [at] about eleven o'clock." Jackson said there were "a lot of rounds going off," but she did not know how many shots were fired because she and her friends ran into her house when defendant started shooting. Jackson testified that after she went back outside, she saw Rasheeda laying face down on the sidewalk.

When Jackson was interviewed at the police station, she did not initially tell the police that Williams had a gun because it was broken and she did not want him to get in trouble. She also testified the alcohol and drugs she consumed that night did not affect her ability to observe and perceive the events that occurred.

Rashaad Williams testified he witnessed defendant fire at least two shots "straight up" into the air, which caused everyone to run into Jackson's house. He also testified he did not inform the police he had a broken gun because he was "stressed and depressed" after his sister's death and afraid of getting in trouble.

Co-defendant Andre Jones, defendant's cousin, was the State's next witness. He testified that after the first fight, he "went looking for" his cousins to let them know he "had just got jumped." According to Jones, he told defendant he wanted to have a "straight up" fight with Williams, and defendant agreed to go with him to "arrange a straight up fight." Jones testified that neither he nor defendant mentioned bringing a gun to the fight. However, Jones admitted he was charged with unlawful possession of a gun as a result of the shooting and that he pled guilty to the charge. Jones also confirmed that during his second fight with Williams, he "heard some shots," but he claimed he did not know "who was shooting."

Sergeant Ivan Mendez testified he responded to the scene at about 11:35 p.m. on April 29, 2002, and recovered a total of nine nine-millimeter spent shell casings. New Jersey State Police Sergeant William Wheatley, a ballistics and firearms expert, examined the nine shell casings recovered from the scene and determined they were all discharged from the same firearm, a nine-millimeter Luger pistol. However, the police never recovered a gun in connection with the shooting.

Dr. Raafat Ahmad, a medical examiner, also testified as an expert witness for the State. Dr. Ahmad performed an autopsy on the victim and found that the cause of death was a gunshot wound to the head.

Defendant made a motion for acquittal under Rule 3:18-1 at the close of the State's case, arguing the State had not met its burden of proof as to the elements of each offense, but the motion was denied. Defendant did not testify or call any witnesses on his own behalf.

After the jury rendered its verdict, defendant filed a motion for a new trial "based upon newly discovered evidence," claiming two potential witnesses could have provided exculpatory testimony. In a certification dated December 27, 2007, defendant's new attorney alleged that one of the potential witnesses had personal knowledge of defendant's "involvement (or lack thereof)" in the shooting, and the other witness, an inmate at the Mercer County jail, could "state with certainty" that defendant did not commit the offenses. However, defense counsel did not produce an affidavit or certification from either of the potential witnesses, and the court denied defendant's motion because it failed to "meet the Carter test."

In a letter to the court dated April 24, 2008, defendant requested reconsideration of his motion for a new trial based on an "unsolicited" letter from another inmate, Robert Wilson, to defendant's attorney dated April 20, 2008. Wilson wrote, "I was there that night when that young lady got shot and your client wasn't the one that shot her." Wilson stated he was writing the letter of his own free will, but failed to explain why he had not come forward for almost six years since the shooting on April 29, 2002. Defendant's attorney advised the court that Wilson had been charged with aggravated manslaughter and that Wilson's attorney refused to allow him to speak with Wilson.

During defendant's sentencing hearing, the court recalled "there were many shots fired . . . and, obviously, one of them found Ms. Hightower and killed her instantly." The court denied defendant's motion to be sentenced as a second-degree offender under N.J.S.A. 2C:44-1(f)(2) and also denied defendant's request to reconsider his motion for a new trial. After finding aggravating factor six (defendant's prior criminal record), N.J.S.A. 2C:44-1(a)(6); aggravating factor nine (the need for deterrence), N.J.S.A. 2C:44-1(a)(9); and mitigating factor eleven (imprisonment would entail excessive hardship for defendant's dependents), N.J.S.A. 2C:44-1(b)(11), the court sentenced defendant to a twenty-year prison term for aggravated manslaughter, subject to NERA.

Defendant argues in his first point that the trial court erred in denying his motion for acquittal at the conclusion of the State's case. The trial court must, on motion by defendant or sua sponte, grant a motion to acquit if "the evidence is insufficient to warrant a conviction," R. 3:18-1, and we must apply the same standard on appeal. State v. Moffa, 42 N.J. 258, 263 (1964). That standard requires the trial court to view "the evidence and the inferences reasonably to be drawn from it . . . favorably to the prosecution. If upon such consideration . . . a reasonable jury could determine that defendant committed the crime charged against him, the motion to acquit must be denied." State v. Van Duyne, 43 N.J. 369, 377 (1964).

In the present matter, the court considered the entirety of the evidence and its findings included the following:

Now this jury is entitled to make reasonable inferences. . . . There is no direct evidence here, obviously, that this defendant intended to shoot [Rasheeda Hightower] that he pointed a gun at her, but when you look at the totality of the circumstances here, it appears and this jury could find that the only shooter was, in fact, this man and that if you believe the theory behind it all that he was there to protect his cousin from what appeared to be a bunch of people jumping on him when [his cousin] was starting to apparently get the best of his adversary who was friendly and connected with the others. There are some inferences that can be drawn that I think could be found to be not unreasonable inferences. I think there is sufficient evidence under that theory . . . but it's up to the jury to decide . . . the credibility of that testimony and they will do so as they will be instructed to do. But as far as the 3:18 motion to dismiss, I deny that as to [the] three counts of the indictment.

Thus, the trial court found there was sufficient evidence to support defendant's conviction if the jury believed the State's witnesses and, in our view, the matter was correctly decided. See State v. Haines, 20 N.J. 438, 446 (1956) ("Credibility is truly an issue for the jury.").

In his next point, defendant contends the trial court committed reversible error by denying his speedy trial motion. In reaching its decision, the court applied the four-part test set forth in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93; 33 L. Ed. 2d 101, 117-18 (1972). The Barker test consists of the following factors: the length of the delay; the reason for the delay; the defendant's assertion of his speedy trial claim; and whether the defendant suffered prejudice due to the delay. Our review of the record confirms the trial court properly applied the Barker standards to the facts of the case.

While acknowledging the three-year period between the first indictment and defendant's speedy trial motion, the court explained that the prosecution of manslaughter "take[s] more time to prepare [and] investigate" because it is more complicated than an "ordinary street crime." The court further noted defendant did not suffer oppressive pretrial incarceration because he was released on bail in 2003.

In addition, the court found defendant knew of the pending case for three years prior to filing his motion, and he failed to demonstrate any specific prejudice due to the passage of time. In contrast, the court determined the delay had prejudiced the State more than defendant because the State's witnesses had become inconsistent in their "positions and testimony." Under these circumstances, we conclude the court did not err in denying defendant's motion to dismiss the indictment.

In his third point, defendant contends the trial court erred in denying his motion for a new trial based on newly discovered evidence and his request for reconsideration of that motion. Generally, "[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." R. 3:20-1. In this case, the trial court determined that defendant failed to establish that the letter from Robert Wilson or the alleged statements from the two additional witnesses were material and "not merely cumulative or impeaching or contradictory," and that they "would probably change the jury's verdict if a new trial were granted." Carter, supra, 85 N.J. at 314. We agree that defendant's "new evidence," which was unsupported by a certification or affidavit, merely contradicted the testimony of several witnesses presented at trial, including Cicely Jackson and Rashaad Williams, and we affirm the denial of defendant's motion for a new trial substantially for the reasons stated by the trial court.

Lastly, defendant argues the trial court should have either sentenced him as a second-degree offender or to a shorter term within the first-degree range. In order to sentence a defendant "one degree lower than that of the crime for which he was convicted" pursuant to N.J.S.A. 2C:44-1(f)(2), the court must find that: (1) the mitigating factors clearly and convincingly outweigh the aggravating factors; and (2) the interest of justice demands such a lower sentence. However, "trial courts should be cautious in imposing downgraded sentences for aggravated manslaughter" and other cases in which the legislature has attached an enhanced penalty for a particular offense. State v. Mirakaj, 268 N.J. Super. 48, 51 (App. Div. 1993) (affirming denial of defendant's motion to be sentenced as a second-degree offender because the interest of justice did not demand that defendant who pled guilty to aggravated manslaughter receive a lower sentence under N.J.S.A. 2C:44-1(f)(2)).

In the present matter, the court found that the two aggravating factors substantially outweighed the one mitigating factor, and the record contains sufficient competent and credible evidence to support that determination. Consequently, defendant was not entitled to be sentenced as a second-degree offender.

As a reviewing court, we may modify a sentence when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). This is not such a case. See also State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate courts to refrain from "second-guessing" the discretionary assessments of sentencing judges).

 
Affirmed.

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

In State v. Carter, 85 N.J. 300, 314 (1981), the Court held that: "the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted."

Footnote continued on next page.

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A-5090-07T4

August 2, 2010