STATE OF NEW JERSEY v. FRANK E. MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2953-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK E. MOORE, a/k/a

FRANK A. MOORE, FRANK NITTY,

FRANK E. MORRIS, DERRICK

THOMAS,

Defendant-Appellant.

________________________________________________________________

October 29, 2012

Submitted September 20, 2012 - Decided

Before Judges Simonelli, Koblitz and Lisa.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-08-2591.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Frank E. Moore appeals from a judgment of conviction entered on July 9, 2010. His first trial resulted in a mistrial after the shooting victim testified to a threatening phone call she received from defendant a few months after the incident. Neither the prosecution nor defense was aware of this phone call. Defendant requested a mistrial, which the State opposed. The State immediately investigated the matter and discovered the pertinent Winslow Township Police Department report, which had not been shared with the prosecution. The court granted defendant's renewed request for a mistrial the following day. Defendant was then retried and convicted. On appeal he argues that the retrial violated his double jeopardy protections. U.S. Const. amend. V; N.J. Const. art. I, 11. He also maintains that the forced entry into his home to arrest him was improper, the prosecutor's summation violated his right to remain silent and his sentence is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On August 20, 2008, a Camden County Indictment No. 08-08-2591 was filed, charging defendant with: first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a handgun by certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count five). Defendant was found not guilty of count one, the jury was deadlocked on count two (which the prosecutor then dismissed) and he was found guilty of counts three, four and five. He was given an aggregate sentence of twenty years in prison with an eleven-year period of parole ineligibility.

The trial testimony revealed the following facts. On Friday, March 21, 2008, Shaquanna Wright went out to celebrate her birthday with her friend and neighbor, Danielle Orlando. Although Orlando was married, she had been having an affair with defendant and invited him to accompany the women that night. The two women picked defendant up at his mother's home.

Defendant asked Orlando for her car keys, stating that he needed to take care of something. The two women went inside a bar, began drinking and then dancing provocatively. Wright noticed defendant standing at the back of the bar, staring at them. Orlando went to speak with defendant, who indicated he wanted to leave. Although they did not want to go, the women ultimately agreed to leave the bar with defendant.

Orlando and defendant argued before entering the vehicle and exiting the parking lot. Orlando drove, while defendant sat in the passenger seat and Wright sat in the back seat. The arguing continued until defendant punched Orlando in the face. Wright "exploded" and began to shout at defendant. Orlando stopped the car near the home of defendant's cousin. Orlando stumbled as she climbed out of the car. Wright tended to Orlando and helped her from the ground, all the while shouting at defendant.

As Wright continued shouting, defendant walked around the front of the car to the driver's side, opened the trunk, and walked to the back of the vehicle. Orlando and Wright testified to hearing defendant say the word "bitch," after which he shot Wright with a gun. The bullet grazed the left side of Wright s head. Wright collapsed into the back passenger seat, such that her body was halfway out of the car. Orlando then pushed Wright's body into the car and drove her to the emergency room at Cooper Hospital.

Shortly after 1:00 a.m., New Jersey State Police Detective Sergeant Marco Rodriguez responded to Cooper Hospital on the report of a gunshot victim. Upon arriving at the hospital, the detectivenoticed a black Chevy Malibu parked in the driveway, directly in front of the emergency room doors, with what appeared to be blood stains in the vehicle's back seat.

Det. Rodriguez spoke with Orlando, who appeared distraught, nervous and intoxicated. Orlando consented to a search of her car. Upon closer inspection, police discovered blood stains in the back behind the driver's seat, on the rear passenger window, on the rear passenger door and on the floorboard.

Det. Rodriguez then questioned Orlando about the incident. Orlando initially told police a false story, covering for defendant.

Orlando later picked defendant up at his cousin's house and they went to a rented motel room, where they remained until approximately 10:30 a.m. Later that night, Orlando contacted Det. Rodriguez to whom she had given her initial, false statement. She informed the detective that defendant shot Wright. She said she initially lied to police out of concern that her husband would learn of the affair and because she feared defendant.

An investigation of defendant's criminal history revealed his most recent address as his mother's residence in Lindenwold. Orlando agreed to assist in apprehending defendant. She called defendant and arranged to go to the beach with him. During their conversation, defendant stated that he was at his mother's residence. Orlando was on the phone with defendant as police surrounded the building in which he lived and arrested him.

Defendant raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN ITS FINDING THAT DOUBLE JEOPARDY DID NOT ATTACH AND THAT THE CASE WAS SUBJECT TO BEING RETRIED.

POINT II: THE FORCED ENTRY OF THE POLICE INTO THE APARTMENT WHERE DEFENDANT WAS ARRESTED WAS UNLAWFUL. AS A RESULT, THE COURT ERRED IN REFUSING TO EXCLUDE FROM TRIAL THE DETAILS OF THE ARREST.

POINT III: THE PROSECUTOR COMMITTED MISCONDUCT WHEN, IN HER SUMMATION, SHE IMPROPERLY LINKED DEFENDANT'S BEHAVIOR TO THE BROADER SOCIAL ILL OF MALE VIOLENCE AGAINST WOMEN. (Not Raised Below.)

POINT IV: THE AGGREGATE SENTENCE IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL RELEVANT CIRCUMSTANCES.

I

Defendant asserts the trial court erred in not granting his motion to dismiss the indictment on grounds of double jeopardy because defendant "had no other realistic option" but to request a mistrial due to the highly prejudicial nature of Wright's testimony. The decision whether to dismiss an indictment lies within the discretion of the trial court, and will only be overturned upon a showing of a mistaken exercise of that discretion. State v. Hogan, 144 N.J. 216, 229 (1996) (citations omitted); State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010) (citations omitted).

The double jeopardy clause of the United States Constitution "protects a defendant from repeated prosecutions for the same offense." State v. Torres, 328 N.J. Super. 77, 85 (App. Div. 2000) (citations omitted). "Our State constitutional prohibition against double jeopardy is thus coextensive with its federal counterpart." Id.at 91 (citations omitted). Where there is a jury trial, "'jeopardy attaches after the jury is impaneled and sworn.'" State v. Veney, 409 N.J. Super. 368, 380 (App. Div. 2009) (quoting State v. Allah, 170 N.J.269, 279 (2002)). "From that point [on], a defendant is entitled to have [the] trial proceed to its normal conclusion before that particular [panel]." State v. Dunns, 266 N.J. Super. 349, 362 (App. Div.) (citations omitted), certif. denied, 134 N.J.567 (1993).

"Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S. Ct. 2083, 2089, 72 L. Ed. 2d 416, 424 (1982).

Defendant moved for a mistrial based on Wright's testimony that defendant had called and threatened her a few months after the shooting. Neither defense counsel nor the prosecutor was aware of this phone call, which had been reported to the local police and not passed on to the Camden County Prosecutor's Office. Defendant requested a mistrial based on the defense's inability to prepare for such testimony and the prejudicial impact resulting from its presentation to the jury. The trial judge granted defendant's request, noting the "significant prejudice" suffered by defendant. Importantly, the judge also determined that the State had at no time acted in bad faith.

When a defendant is granted a mistrial because a State's witness gives highly prejudicial testimony of which neither the State nor the defense is aware, it is not appropriate to dismiss the indictment on double jeopardy grounds. When confronted with this prejudicial testimony, defendant had the option to either immediately request a mistrial or to proceed to a verdict in his original trial, and, if convicted, appeal and face retrial. Kennedy, supra, 456 U.S. at 676-77, 102 S. Ct. at 2090, 72 L. Ed. 2d at 425-26. He opted for the former, thereby invoking the option to confront the government s case only once. Ibid. ("But some of the advantages secured to him by the Double Jeopardy Clause -- the freedom from extended anxiety, and the necessity to confront the government's case only once -- would be to a large extent lost in the process of trial to verdict, reversal on appeal, and subsequent retrial.") (citing United States v. Dinitz, 424 U.S. 600, 608, 96 S. Ct. 1075, 1080, 47 L. Ed. 2d 267, 274 (1976)). Given the lack of bad faith on the part of the prosecution, we reject defendant s argument in this regard. See Torres, supra, 328 N.J. Super. at 86-89.

II

Defendant next argues that the police needed either a search warrant, consent or exigent circumstances to execute the arrest warrant at his mother's home, which he claims is the residence of "a third party." Investigator John Hunsinger of the Camden County Prosecutor's Office participated in the execution of an arrest warrant for defendant on April 1, 2008. He knocked on the front door of defendant's mother's residence and heard what he described as "a young child's voice [ ] ask[] who it was." The young child was later identified as defendant's son.

After identifying himself, Hunsinger heard "footsteps going through the apartment" but no one answered the door. Hunsinger continued to knock, repeatedly identifying himself as a police officer and requesting entry. After approximately ten minutes of knocking, the police used a battering ram to forcibly open the front door to the residence. Hunsinger testified that the decision to "take the door" was motivated by the present allegations against defendant, his past criminal history of weapons possession, and out of concern that the child was possibly a hostage.

After the police entered, defendant's mother informed them that defendant was laying on the bedroom floor. After defendant sent the child out of the bedroom, he was arrested.

When reviewing a trial court's decision on "a motion to suppress, an appellate court 'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "An appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). Review of a trial judge's legal conclusions, however, is plenary. Handy, supra, 206 N.J. at 45 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Resolution of this issue turns on whether defendant lived at the home of his mother. Defendant's entire argument on this point is premised on the assertion that police wrongfully entered a third party's residence to execute the arrest warrant. Defendant correctly notes that "law enforcement officers must have either consent, a search warrant, or exigent circumstances" to justify entry of "a third-party's home to execute an arrest warrant[.]" State v. Johnson, 193 N.J. 528, 554 (2008) (citations omitted).

"An arrest warrant 'implicitly carries with it the limited authority to enter a dwelling' where the suspect lives when there is reason to believe the suspect is inside." State v. Brown, 205 N.J. 133, 145 (2011) (quoting Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388, 63 L. Ed. 2d 639, 661 (1980)). Precedent dictates that law enforcement may lawfully execute an arrest warrant in a dwelling if there is "an objectively reasonable basis both for believing the residence to have been the home of the person named in the arrest warrant and that he was present in the home at the time the warrant was executed." State v. Miller, 342 N.J. Super. 474, 497 (App. Div. 2001).

The trial judge found "credible and consistent" the testimony of the State's witnesses establishing that defendant resided at the address where police executed the arrest warrant. He specifically noted that defendant kept "[h]is personal belongings and furnishings" there and that parole records indicated the address served as his primary residence. Orlando further testified to speaking with defendant on the phone immediately prior to execution of the warrant, at which time she confirmed that he was present at his mother's residence. The judge found Orlando's testimony in this regard to be "completely credible." The court noted that the police neither searched for nor recovered any physical evidence from the home, and determined that the violent nature of the charges on which defendant was sought and the failure to respond after ten minutes of knocking justified the forcible entry. These findings are supported by "sufficient credible evidence present in the record" and are therefore entitled to deference. Johnson, supra, 42 N.J. at 162.

Moreover, these findings provide "objectively reasonable bases for believing that [defendant] both reside[d] in the dwelling and [was] within the dwelling at the time" the police executed the arrest warrant. Miller, supra, 342 N.J. Super. at 479.

III

Defendant argues as plain error that the prosecutor "crossed the line separating fair from unfair comment[,]" during summation by referring to domestic violence generally, thereby tainting the jury's opportunity to "evaluate the evidence fairly[.]"

During summation, the prosecutor began: "Good morning. Like most cases that involve violence against women, oftentimes the issue is about control, who's in control of the situation."

Defendant seeks to characterize this comment as "a thinly-veiled attempt to inflame the jurors by identifying defendant with matters of public notoriety as to which no evidence was or could have been ever introduced." State v. Holmes, 255 N.J. Super. 248, 251 (App. Div. 1992).

"The standard for reversal based upon prosecutorial misconduct 'requires an evaluation of the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial.'" State v. Rodriguez, 365 N.J. Super. 38, 47 (App. Div. 2003) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)), certif. denied, 180 N.J. 150 (2004). "To justify reversal, the comments must be clearly and unmistakably improper and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." Id. at 47-48 (citing State v. Roach, 146 N.J. 208, 219-20, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)).

"Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." State v. Timmendequas, supra, 161 N.J. at 576 (citing State v. Ramseur, 106 N.J. 123, 323 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993)). "Failure to [raise] a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Ibid. (citing State v. Irving, 114 N.J. 427, 444 (1989)). As defendant did not object to the prosecutor's comment at trial, its effect must be measured using the plain error rule. R. 2:10-2. A reviewing court may reverse on the basis of unchallenged error only if it finds an error that was "clearly capable of producing an unjust result[.]" R. 2:10-2.

Defendant's argument fails to show how the prosecutor's solitary passing reference to violence against women was clearly capable of producing an unjust result.

IV

Defendant asserts that the sentence imposed on counts three, four and five is manifestly excessive. The judge sentenced defendant on count five, second-degree certain persons prohibited from having weapons, as a persistent offender, to an extended term of sixteen years in prison with a parole disqualifier of eight years, five of which are mandatory. N.J.S.A. 2C:44-3. On count four, unlawful possession of a gun, the judge sentenced defendant to a concurrent term of ten years with a five-year parole disqualifier. The judge then sentenced defendant on count three, aggravated assault, to four years with a three-year parole disqualifier, to run consecutive to the sentences imposed on counts four and five. Defendant first contends that the sentencing court was unduly harsh because Wright was not seriously injured and the jury acquitted defendant of attempted murder, count one.

The Supreme Court recently fortified the authority of sentencing judges, reminding appellate tribunals to avoid substituting their preferences for legally compliant sentencing actions. State v. Bieniek, 200 N.J. 601, 612 (2010). "'[J]udges who exercise discretion and comply with the principles of sentencing remain free from the fear of second guessing.'" State v. McGuire, 419 N.J. Super. 88, 160 (App. Div.) (quoting State v. Dalziel, 182 N.J. 494, 501 (2005)), certif. denied, 208 N.J. 335 (2011). Once the trial court balances the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." Bieniek, supra, 200 N.J. at 608. If a court adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

The sentencing judge granted the State's motion to sentence defendant to an extended term as a persistent offender. He found aggravating factor (3), the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); (6), the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and (9), the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge also found mitigating factor (11), the imprisonment of the defendant would entail excessive hardship to himself or his dependents, N.J.S.A. 2C:44-1(b)(11). The judge concluded that the aggravating factors preponderate over the lone mitigating factor.

Defendant's pre-sentence report reveals an extensive criminal history with seven convictions in New Jersey, including unlawful possession of a weapon, eluding, and CDS convictions. Defendant committed the present offenses approximately seven months after his release on parole after serving a ten-year sentence on the eluding charge.1 He is also a multi-state offender, having been arrested eight times in Georgia. The nature of these offenses and their sheer volume amply support the trial court's findings that defendant is at risk to re-offend and the sentence is necessary to deter defendant's unlawful conduct. The court's findings of aggravating factors (3), (6), and (9) are supported by credible evidence in the record.

As to defendant's assertion that the trial court erred by imposing a consecutive sentence, N.J.S.A. 2C:44-5(d) provides that a trial court has discretion to impose either consecutive or concurrent sentences for two or more crimes. See 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). In State v. Yarbough, supra, the Supreme Court enumerated five factors a court should consider when making this determination: (1) whether "the crimes and their objectives were predominantly independent of each other"; (2) whether they "involved separate acts of violence or threats of violence"; (3) whether they "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"; (4) whether they "involved multiple victims"; and (5) whether "the convictions for which the sentences are to be imposed are numerous[.]" Ibid. (citations omitted).

Defendant contends that because the judge found only factor one applicable, he should have imposed concurrent sentences on all convictions. Notably, however, the five Yarbough factors "should be applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427 (2001). As such, "a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." State v. Ellis, 346 N.J. Super. 583, 594 (App. Div.) (quoting Carey, supra, 168 N.J. at 427-28), aff'd o.b., 174 N.J. 535 (2002).

The sentencing judge determined that the crimes of third-degree aggravated assault (count three) and second-degree possession of a handgun by certain persons not to have weapons (count five) were sufficiently independent of one another under Yarbough to justify a consecutive sentence. The judge also noted that prior correctional measures, including probation, incarceration, and an extended term sentence for eluding had failed to deter defendant from possessing a deadly weapon and using it against the victim in this case. "[W]e [should] not substitute our judgment for that of the trial court unless the sentence is so wide of the mark as to require our intervention." State v. Spivey, 179 N.J. 229, 245 (2004) (citing Carey, supra, 168 N.J. at 430-31). The sentence imposed complies with the statutory framework and does not constitute an abuse of discretion.

1 Defendant's parole date on the eluding charge was September 2, 2007.