STATE OF NEW JERSEY v. BRIAN M. RICHARDSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5881-07T45881-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN M. RICHARDSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 28, 2010 - Decided

Before Judges Axelrad, Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1604.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from his sentence and convictions arising from a fatal shooting during the course of a robbery and a separate aggravated assault. We affirm.

The evidence can be summarized as follows:

On the evening of July 23, 2005, Jamar Smith encountered defendant Brian Richardson when defendant drove up to him in a green Honda Accord with Anthony "Scoop" Mitchell. Smith joined them in the car. They went to the Chris Anthony Liquor Store on Union Avenue in Paterson to buy cigarettes but left without a purchase because the store did not sell loose cigarettes. When shown video surveillance from the store that evening, Smith identified defendant and himself on the video and testified that, although he was unaware of the fact at the time, it appeared that defendant was holding a gun in the liquor store.

Smith and defendant then went into a neighboring restaurant to buy cigarettes. After leaving, Smith saw Levar McKay, whom he knew from school. As they were speaking, defendant came from behind McKay, grabbed him with one arm and put a handgun into McKay's side. McKay testified that when the gun was pointed into his side, he looked down and saw that the gun was a black revolver. Smith told defendant to "chill." Defendant stopped and said, "I didn't know you knew him[.]"

After this incident, Smith decided to go to the car to avoid further trouble and left defendant behind on the street.

The victim, Christopher Wilson, was walking home alone from the Moonlight Lounge in Paterson and called his girlfriend, Amy Parisi, at approximately 1:00 a.m. Because she was angry that he had been drinking, they were not having a conversation, but he maintained the telephone connection with her. As a result, she was able to overhear his conversation with a male whose voice she did not recognize. She heard that person say, "hey man, what's up[?]" and "why you walking away like you don't know me[?]" Parisi heard Wilson say, "what." The other person demanded, "give me your money." Wilson replied, "I don't have any money." Parisi then heard the other man say, "hurry up or I'm going to pull the trigger." She said, "Honey"; Wilson responded, "Honey, hold on," and the call ended.

Giselle Bulwin came upon the robbery in progress. She saw Wilson, with a cell phone to his ear, and a man she later identified as defendant, pointing a gun to his right temple. She was approximately eight feet away when defendant turned to her and stated, "[L]ady, you'd better get out of here or I'll shoot you." As she walked away, she saw a tan car parked on the street with a stocky black man wearing a white tee shirt seated inside. She called 9-1-1 and reported that a black man was pointing a black gun to the head of a white man. She also provided descriptions of their clothing. During her testimony, Bulwin identified defendant as one of the individuals in the Chris Anthony Liquor Store video and stated that he appeared to be holding the same gun that she saw him with on the street.

There were three witnesses who observed the actual shooting, Lorelly Arevalo, Hector Ortiz and Angel Perdomo. Each of them described an argument or commotion between two men, one white and one black, at the corner of Redwood and Union Avenues. Perdomo testified that the black man said "Give me your money[,]" the white man mumbled something, and the black man said, "[G]ive me your fucking money." Each saw the African-American punch the white man. Perdomo testified that the black man had a gun in his hand when he hit the white man. Each saw the white man hit the black man and the gunshot that was fired immediately thereafter. Arevalo and Ortiz saw the white man hold his chest, run across the street and fall on the corner of Jasper and Union Avenues. Perdomo also saw the white man lying on the ground. Arevalo and Ortiz saw the black man run to a grey Honda Civic, which then left the area. After her call to 9-1-1, Bulwin also saw the car she had previously described, traveling on Union Avenue with both the stocky black man and defendant inside.

Smith was in the car with Scoop, telling him that defendant just tried to rob someone when he heard a "boom" that sounded like a gunshot. He saw defendant run to the car with the gun in his hand and saw Wilson holding his chest. Scoop was going to leave defendant behind but relented. When defendant got into the car, they pulled away. Smith was angry with defendant. He was on parole and did not want to be charged with a new offense. He asked defendant why he did that. Defendant replied that "he hit me" and stated that he only got two dollars from the victim. Smith later left Scoop and defendant that evening. After being counseled by a clergyman, he went to the police and gave a statement.

Dr. Zhongyue Hua, of the Bergen County Medical Examiner's Office, testified as to his conclusions after performing an autopsy on Wilson. The cause of death was a gunshot wound to the chest from a gun fired at a distance of approximately one inch to two feet. The bullet was retrieved from Wilson during the autopsy. Dr. Hua also testified that Wilson was in a defensive posture when shot.

Defendant was indicted for the murder of Christopher Wilson, N.J.S.A. 2C:11-3(a)(1) and 3(a)(2) (count one); possession of a weapon with the purpose to use it unlawfully against Christopher Wilson, N.J.S.A. 2C:39-4 (count two); possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); armed robbery of Christopher Wilson, N.J.S.A. 2C:15-1(a)(1)(2) (count four); felony murder of Christopher Wilson, N.J.S.A. 2C:11-3(a)(3) (count five); possession of a weapon with the purpose to use it unlawfully against Levar McKay, N.J.S.A. 2C:39-4 (count six); and aggravated assault of Levar McKay, N.J.S.A. 2C:12-1(b)(4) (count seven).

Defendant was convicted on all counts of the indictment. He was sentenced to sixty years incarceration, with 85% of that time to be served before he became eligible for parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder count; to a consecutive term of eight years with four- years of parole ineligibility on count six and to concurrent terms of eighteen years with 85% parole ineligibility pursuant to NERA on count four and five years with two and one-half years of parole ineligibility on count three. The remaining counts were merged.

In this appeal, he raises the following issues:

POINT I

THE ADMISSION OF OTHER CRIME EVIDENCE WAS ERROR WHICH DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

POINT II

TESTIMONY REGARDING THE INTERVIEW OF A NON-TESTIFYING WITNESS WAS INADMISSIBLE HEARSAY AND VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION. (NOT RAISED BELOW).

POINT III

THE ADMISSION OF IMPROPER EXPERT TESTIMONY DEPRIVED THE DEFENDANT OF HIS RIGHT TO A JURY TRIAL.

POINT IV

THE PROSECUTOR'S IMPROPER CONDUCT DURING TRIAL AND STATEMENTS MADE IN SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL. (PARTIALLY RAISED BELOW).

POINT V

THE ADMISSION OF PREJUDICIAL CUMULATIVE AND IMPROPER VICTIM IMPACT EVIDENCE WAS GROSSLY PREJUDICIAL TO THE DEFENDANT AND NECESSITATES A NEW SENTENCING HEARING AND/OR REDACTION OF THE PRE-SENTENCE REPORT. (NOT RAISED BELOW).

POINT VI

THE DEFENDANT'S AGGREGATE SENTENCE OF 68 YEARS WITH 59 YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (NOT RAISED BELOW).

POINT VII

THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).

In a supplemental brief filed pro se, defendant argues that the court committed reversible error by failing to conduct additional questioning of the jury panel to ascertain the impact of statements allegedly made during jury selection by a prospective juror who was dismissed.

After careful review of the briefs and record, we are satisfied that none of these arguments have merit. As to the argument raised by defendant in his pro se supplemental brief, the record demonstrates that the court took appropriate remedial measures when advised of possible juror misconduct during jury selection and that there is no evidence that the jury was tainted. We conclude, that defendant's pro se argument and the arguments presented in Points II, IV, V and VII lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

I

We turn first to defendant's claim that "other crime" evidence was admitted in error.

Defendant contends that the trial court erred in admitting the following evidence: that defendant possessed a black handgun when he entered Chris Anthony Liquors; that defendant allegedly attempted to rob Levar McKay before the robbery and shooting of Christopher Wilson; and that defendant and Jamar Smith resided at a "boarding house" with sign-in requirements.

A

In July 2005, defendant was on probation for another offense, and was residing at a halfway house and rehabilitation facility, Integrity House, as a condition of probation. Smith was also a resident of Integrity House. At the time this offense was committed, defendant was on a furlough from Integrity House. Prior to trial, the prosecutor advised the court that, because identity would be an issue, he wanted to present evidence of the sign-in requirement and the fact that defendant's whereabouts were unaccounted for at the time of the offense. Defense counsel objected to the mention of Integrity House and the sign-in requirement. He assured the court that he would not argue that defendant was at Integrity House at the time of the offense. The court concluded that evidence that Jamar Smith knew defendant prior to the shooting was relevant to the credibility to be attached to his identification of defendant and asked counsel to agree on a way to refer to Integrity House.

Prior to Smith's testimony, the prosecutor placed on the record the following stipulation:

It is agreed by the parties that in July of 2005 Brian Richardson was residing in a residential boarding house in Newark. This house requires that all residents sign [in] and out when entering or leaving the program. The Paterson police reviewed the sign-in book for the house, which shows that Brian Richardson signed out at 9:32 a.m. on Saturday, July 23rd, 2005 and signed back in at 5:01 p.m. on Sunday, July 24th.

Defense counsel agreed to this description being provided to the jury in response to the court's ruling that such evidence was admissible and relevant to elements the State was required to prove. Defendant has not articulated how this sanitized version of the facts constituted evidence of prior criminal activity or how he was prejudiced by such evidence.

We afford substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). We are satisfied from our review of the arguments and the record that the trial court did not abuse its discretion in admitting this evidence.

B

Video surveillance from Chris Anthony Liquors showed that at 1:55:51 a.m., defendant had a gun in his right hand. After they left the liquor store, Smith and defendant went next door to a restaurant, where they encountered Levar McKay, who was known to Smith from school. Smith testified that he was talking to McKay when defendant came from behind him and choked McKay and put the gun to him. When Smith told him to "chill," defendant stopped and said, "I didn't know you knew him[.]" Smith returned to the car where Scoop was waiting and told him that defendant had just tried to rob somebody. While he was telling him what happened, Smith heard a "boom" that sounded like a gunshot. He saw defendant running to the car and another man running, holding his chest.

After hearing this testimony, without objection, the trial court advised counsel of his intention to charge the jury "with regard to the testimony about what happened with Levar McKay." The judge stated that he was satisfied that the evidence was "clearly admissible," probably as res gestae. The police were dispatched to the scene at 2:00 a.m. The judge noted that the conduct involving McKay occurred "about a minute" prior to the shooting and that the evidence was admissible to show that defendant had a gun in his possession at 2:00 a.m. and that, at that time, he was acting with a purpose to commit a robbery or a theft. The judge stated that it was his intention to charge the jury pursuant to State v. Cusick, 219 N.J. Super 452 466-67 (App. Div.), certif. denied, 109 N.J. 54 (1987), regarding the limited use for such evidence. Before any further testimony was taken, the court gave a limiting instruction that explained the permitted and prohibited uses of this evidence. Defense counsel did not object to the instruction given at this time or when an instruction was given once again in the jury charge.

Defendant was charged with three possessory weapons offenses, which included a count charging him with possession of a firearm with the purpose to use it unlawfully against Levar McKay, and a count that charged him with the aggravated assault of Levar McKay. Therefore, evidence that he was in possession of a firearm at the liquor store and at the restaurant and thrust a gun into McKay's side in an attempt to rob him was evidence of offenses for which he was charged, not "other crimes" evidence subject to an analysis under Rule 404(b).

The evidence regarding the defendant's abandoned attempt to rob McKay was also admissible as res gestae. "Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Such evidence is admissible as res gestae of the criminal event if it involves "an identifiable, overriding objective that ties together disparate conduct." State v. L.P., 338 N.J. Super. 227, 236 (App. Div.), certif. denied, 170 N.J. 205 (2001). See also State v. Long, 173 N.J. 138, 155-56 (2002); State v. Martini, 131 N.J. 176, 239-40 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995).

As the trial court observed, the evidence that defendant acted with the intention to rob Levar McKay within minutes of the robbery defendant was charged with was probative of an identifiable, overriding objective to commit a robbery. This evidence was, therefore, also properly admitted as res gestae. In addition, although a limiting instruction was unnecessary because the evidence was admitted as res gestae, Long, supra, 173 N.J. at 156; Martini, supra, 131 N.J. at 242, the court gave a comprehensive limiting instruction tailored to the charges and evidence in the case. The trial court did not abuse its discretion in allowing this evidence.

II

No gun was recovered and no shell casings were found at the scene of the shooting. Detective Ador Flores was allowed to testify over objection that, in his opinion, the individual pictured in the Chris Anthony video surveillance photographs was holding a revolver. Defendant argues that this constituted impermissible expert opinion that should not have been admitted into evidence.

The court explicitly stated that Detective Flores was not providing an expert opinion and instructed the jury on non-expert opinion testimony:

Now, this witness hasn't been qualified as an expert with regard to detecting images on a video but he does have some experience that was asked about in the last questions with regard to handguns or firearms like every police officer has.

So, he testified that in his opinion when he saw that he believed he was looking at a revolver in that person's hand, the person on the video. You of course, are going to decide what you believe, based on all the evidence you've heard in the case, you see on that video. All right?

There are times when there's certain things that can be testified to that even lay people can give an opinion about. Without getting into a lot of things, you know, laymen, any juror, any person can testify about what they thought the weather was or an opinion about how fast an automobile was going or whether someone was drunk or not. Those are opinions that commonly, you don't need to be an expert to testify about,

Now, I was satisfied based on everything I heard here that I would allow that testimony. It doesn't mean I've passed on the merits. It means that based on what's been presented it is allowable that this witness can give that opinion.

But you understand ultimately it's your judgment that counts as to what you think the evidence showed you is in the hand of that person in that video.

We review this issue with substantial deference to the trial court's discretion on evidentiary rulings, reversing only if a manifest denial of justice resulted. Carter, supra, 91 N.J. at 106.

Detective Flores testified that he had been with the Paterson Police Department for nineteen years. During the course of his employment, he was involved in numerous cases where firearms were either seized or found as evidence. He was familiar with the differences between a revolver and a semi-automatic handgun, one being that a shell casing is ejected when a semi-automatic weapon is fired and is not when a revolver is fired.

This evidence permitted Detective Flores to offer an opinion based upon his experience as a police officer. See State v. LaBrutto, 114 N.J. 187, 198 (1989) ("Courts in New Jersey have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary."). See also Neno v. Clinton, 167 N.J. 573, 582 (2001). In this case, the opinion was not based upon the personal observations of an investigating officer. However, the facts upon which Detective Flores based his opinion - the images on the video - were available to the jury to assess on its own whether there was adequate factual support for the opinion. The court's instruction to the jury clarified the reason why this opinion was permitted and that it remained for them to decide what the person on the video had in his hand.

The State was required to prove that defendant possessed a firearm for a conviction on the weapons offenses. It made no difference whether that firearm was a revolver or a semi-automatic handgun. The opinion that the object was a revolver did not carry the potential for substantial prejudice found in cases where the expert's opinion includes a legal conclusion that is sought in a verdict or is couched in legalese that tracks the applicable statute. See State v. Reeds, 197 N.J. 280, 296-97 (2009); State v. Nesbitt, 185 N.J. 504, 517 (2006); State v. Odom, 116 N.J. 65, 82 (1989). We are satisfied that the opinion as presented and as explained by the court did not impermissibly usurp the jury's function. In any event, the potential for prejudice is insignificant in light of the testimony from defendant's first victim, Levar McKay, that when he looked down at the gun defendant thrust into his side, he saw a black revolver. In addition, both Jamar Smith and Giselle Bulwin testified that defendant possessed a firearm. Therefore, the admission of this opinion did not result in a manifest denial of justice, see Carter, supra, 91 N.J. at 106, and is not a grounds for reversal of defendant's conviction.

III

Defendant was twenty-two years old at the time of sentencing. Although he had an extensive juvenile history and one felony conviction as an adult, he had never been sentenced to a term of incarceration as an adult prior to this conviction. Defendant argues that the sentence imposed is excessive.

We review the sentencing decision with deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; see also State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g).

The trial court here found no mitigating factors and found the following aggravating factors: N.J.S.A. 2C:44-1(a)(3); N.J.S.A. 2C:44-1(a)(6); and N.J.S.A. 2C:44-1(a)(9). The court rejected the prosecutor's argument that aggravating factor N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of offense were especially heinous) applied and also rejected defense counsel's argument for mitigating factors N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate serious harm) and N.J.S.A. 2C:44-1(b)(9) (his character and attitude showed that he is unlikely to commit another offense). Although defendant argues that the trial court did not properly identify and balance applicable aggravating and mitigating factors, he does not identify any mitigating factor supported by the evidence that the court erroneously declined to consider.

At sentencing, the trial court reviewed defendant's extensive juvenile history, which included a robbery charge when he was sixteen years old, and his adult conviction for possession of drugs, just eight months later. The court observed that defendant had been "given chances," having received five probationary sentences. The court noted the closeness in time of defendant's offenses, stating,

So these things are happening not once and then three years later another problem. These things are happening almost as fast as they can happen . . . .

The court identified the applicable sentencing factors:

I am going to apply aggravating number three [N.J.S.A. 2C:44-1(a)(3)]. It seems to me that's obvious. The risk that the defendant would commit another offense by reason of the drug history which is admitted by adopting the presentence report, by reason of the juvenile history that I've outlined and the time line on those offenses and those arrests.

Six [N.J.S.A. 2C:44-1(a)(6)] applies. The extent of the defendant's prior felony record even at the young age of 22 he's already had a felony conviction. Number nine [N.J.S.A. 2C:44-1(a)(9)] applies, the need for deterring the defendant and others from violating the law.

These factors were supported by a preponderance of the evidence. See O'Donnell, supra, 117 N.J. at 215. The court stated that it was clearly convinced that aggravating factors substantially outweighed mitigating factors. On count one, first-degree murder, the court rejected the State's argument for life imprisonment and imposed a sentence of sixty years, subject to NERA. The court also explained that a consecutive sentence of eight years with a minimum parole ineligibility period of four years was imposed on count six, which charged possession of a weapon with unlawful purpose, because that charge involved a separate victim, Levar McKay. See State v. Yarbough, 100 N.J. 627, 643-44 (1985).

We are satisfied that the trial court properly identified all applicable factors supported by credible evidence in the record, gave an appropriate explanation for its sentence, including the imposition of a consecutive sentence, and acted within its discretion in imposing the sentence here.

 
Affirmed.

Because we find no merit in Point II of defendant's arguments, we have excluded as irrelevant a summary of the testimony regarding David McDermott, a witness interviewed by the investigating officer who had two physical confrontations with the victim prior to the shooting.

Bulwin identified defendant in court and in a prior photographic identification.

Anthony "Scoop" Mitchell also testified at trial that his memory was poor due to drug use and that he had lied in a written statement given to police. Following a hearing conducted pursuant to State v. Gross, 121 N.J. 18 (1990), Mitchell's written statement, which substantially corroborated Smith's testimony regarding the attempted robbery of Levar McKay, was admitted into evidence.

Concurrent sentences of five years with a two and one-half year period of parole ineligibility and eighteen years, subject to NERA, were imposed on counts three and four, respectively. Count two, possession of a weapon for an unlawful purpose, and count five, felony murder, were merged into count one. Count seven, which charged fourth-degree aggravated assault of Levar McKay, was merged into count six. Defendant has not argued that the court erred as to these mergers.

(continued)

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A-5881-07T4

July 14, 2010