STATE OF NEW JERSEY v. ANTHONY O. ROSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY O. ROSE, a/k/a

MU MU,

Defendant-Appellant.

October 20, 2014

Submitted September 10, 2014 Decided

Before Judges Alvarez, Waugh, and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-04-0642.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney for respondent (Jennifer J. Pinales, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Tried by a jury, defendant Anthony Rose was convicted of the lesser-included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and sentenced to twenty-five years, subject to eightyfive percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). He now appeals, alleging that the trial court erred in its jury instructions, erred by excluding evidence regarding the victim's alleged gang affiliation, and erred by imposing an excessive sentence. We affirm.

I

Defendant was indicted on charges of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); two counts of second-degree possession of a weapon, a firearm, for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts two and five); two counts of second-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (counts three and six); third-degree terroristic threats, threatening to kill, N.J.S.A. 2C:12-3(b) (count four); and second-degree certain persons not to have a weapon, a handgun, N.J.S.A. 2C:39-7(b) (count ten).1 He was acquitted of murder but, as we have said, found guilty of aggravated manslaughter. The jury also acquitted him of possession of a weapon for an unlawful purpose and unlawful possession of a weapon.

We recount the relevant facts and circumstances as gleaned from the trial record. On June 7, 2009, Eric Gadson was playing basketball on an outdoor court in a park in Jersey City. That afternoon, he broke up a fistfight between two women he knew as Judy and Anna. Judy left the area and then returned, this time armed with a kitchen knife. Gadson again interceded. He saw Judy place a phone call. Defendant arrived at the park twenty minutes later. He confronted Gadson, and the two began to fight. Gadson punched defendant several times, knocking him onto the ground, but eventually allowed him to get up and walk away.

Later that day, defendant had a conversation with a friend, Zieiah Brown, to the effect that he "was having a problem with somebody." He asked Brown to bring him a "burner," a slang term for a handgun; Brown had no gun to lend defendant. When Brown saw defendant later that day, defendant was driving an older model white car. The following day, when Brown saw defendant, he was driving his black Jaguar. Defendant then told Brown that he had "put in some work and laid somebody down, . . . ca[tching] him coming out [of] the store." On the stand, Brown explained that this phrase meant that defendant had killed someone, and had done so as the person left a store.

The jury also heard a recorded statement obtained by police from Willie Matthews, a longtime friend of defendant and his family. Matthews repudiated the statement when called during the trial, claiming that it was the product of the police confusing him. In the statement, Matthews claimed that on June 7 or 8, 2009, he overheard defendant "in a little panic," telling a third party that he needed a handgun "to do some work," and that "he had a beef and he needed to take care of it."

An eyewitness to the shooting testified that while in a restaurant having coffee, he heard a gunshot out in the street. Looking out, he saw a man wearing a bandana run to a white "American" car and get into the back seat.

A store surveillance video later retrieved by police depicted the victim walking across the street before being shot. A white car and two other vehicles could be seen on the tape. The State's expert opined that the white car was the same type of vehicle purchased by defendant shortly before the incident, a 1994 or 1995 Mercury Grand Marquis. Defendant bought the car in May 2009, although he never transferred the title into his name.

The State also presented testimony that, on the day of the shooting, defendant sold the car to Gonzalez's sister's boyfriend, who lived in Pennsylvania. By the time police located the car, it had been towed from the lot where it had been parked. The license plates were registered to Gonzalez's sister, and it was still titled in the original seller's name.

The victim, Darius Burgess, was shot in the back. Police found a spent .45 shell casing across the street from the park where he died, the same park where Gadson and defendant had their confrontation. Police traced the shell casing to a .45 caliber handgun retrieved during police activity in the vicinity of a known Bloods gang hideout.

The State's theory of the case was that Burgess's killing was a mistake: that defendant mistook him for Gadson. At trial, Gadson said that, although he did not know defendant, he knew Burgess well. In his opinion, he and the victim were similar in appearance. When cross-examined, he acknowledged that Burgess was a little shorter and heavier, and his complexion was a little darker, but he insisted they were nonetheless similar in appearance.

Keith Burgess (Keith),2 the victim's brother, and defendant's proposed witness, testified at an N.J.R.E. 104 hearing. Keith said that approximately five years prior, he was told either by "[p]eople on the streets," "[o]ne of the boys," or "friends," that the victim had been a member of the Bloods gang while he lived in New York. Keith never heard that information directly from his brother. The victim had the initials "M.O.B." tattooed on his neck. This tattoo's meaning was also in dispute. Keith thought it was a reference to the phrase "money or bitches," and did not claim the initials indicated gang membership.

Ultimately, the judge excluded Keith's testimony, characterizing it as hearsay

. . . [E]ven if [the victim] were a Bloods gang member as it appears he may have been . . . , it is unknown [] how long prior to his death [] he was a Blood member. And he was a Blood member in New York . . . , not Asbury Park, not Newark, but the lower East Side. So the connection to the guns being found in a . . . gang area in Asbury Park is remote and there's nothing else to connect it.

. . . [T]his evidence . . . should be excluded because its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, [and] misleading the jury. [T]herefore, I'm going to exclude it under [N.J.R.E.] 403 grounds for those reasons.

During the charge conference, the trial judge informed counsel that she was considering instructing the jury as to the lesser-included offenses of aggravated manslaughter and manslaughter, N.J.S.A. 2C:11-4(b). Defense counsel objected. The trial judge decided to give the manslaughter charges over counsel's objection because she was obliged to

charge the law based on the facts of the case. The evidence in this case does show that there was a single shot . . . across . . . a city street in broad daylight . . . [a distance of] approximately . . . 40 feet . . . .

The wrong victim was allegedly . . . shot. Again, . . . this incident occurred in the daytime near a playground on a city street with other people in the area. So those factors tend to . . . support that this act could have been done recklessly. . . . I believe the evidence in this case does support charging both aggravated manslaughter and reckless manslaughter.

During deliberations, the jury sent in a written question: "'clarify THE CHARGE OF MURDER [i]f the individual pulled the trigger himself or the individual had someone else pull the trigger.'" When the judge suggested charging the jury on accomplice liability, defense counsel "vehemently oppose[d]" the idea. The judge did not give the jury the instruction, and instead only repeated the murder charge. When she asked the jury if it needed to be re-charged on manslaughter, the foreperson said "no." Deliberations resumed.

Later on, the jury asked for written copies of the murder and manslaughter charges, which the judge refused to provide. She instead reread the charges, simultaneously displaying the text on a video screen.

The following day, the jury asked to "read and hear all the charges again." The judge acquiesced to this request. While she was reading the murder instruction, an unidentified juror asked the judge to reread the portion of the charge that contained the "by his own hand" language. Toward the end of the aggravated manslaughter instruction, multiple jurors spoke up, telling the judge she could stop and that they did not need her to repeat the charges respecting the weapons offenses.

Defendant raises the following points of consideration

POINT I

DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE COURT FAILED TO GIVE A "BY HIS OWN CONDUCT" AND/OR "MERE PRESENCE" INSTRUCTION TO THE JURY WITH REFERENCE TO THE CHARGE OF AGGRAVATED MANSLAUGHTER. THE OMISSION CAUSED THE JURY TO RETURN INCONSISTENT VERDICTS AND TO CONVICT ON A THEORY NOT SET FORTH IN THE INDICTMENT NOR SUPPORTED BY THE FACTS. U.S. Const. Amends. V, VI, XIV; N.J. Const. (1947) Art. I, [ ] 1, 8, 9, and 10.

POINT II

THE JURY INSTRUCTIONS ON THE UNINDICTED RECKLESS FORMS OF HOMICIDE WERE NOT CLEARLY INDICATED BY THE EVIDENCE, ESPECIALLY IN LIGHT OF THE FACT THAT THE STATE'S THEORY WAS ONE OF TRANSFERRED INTENT AND THE DEFENSE WAS ONE OF DENIAL. DEFENDANT'S AGGRAVATED MANSLAUGHTER CONVICTION MUST BE REVERSED.

POINT III

THE COURT VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND TO PRESENT A DEFENSE BY PRECLUDING HIM FROM PRESENTING EVIDENCE OF THIRD-PARTY GUILT. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, 1, 10.

POINT IV

THE MATTER SHOULD BE REMANDED FOR RESENTENCING.

II

"Appellate review applies the plain error standard when a defendant fails to object to a given jury charge." State v. Singleton, 211 N.J. 157, 182 (2012). Under Rule 2:10-2,

[a]ny error or omission shall be disregarded by the [A]ppellate [Division] unless it is of such a nature as to have been clearly capable of producing an unjust result, but the [A]ppellate [Division] may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

Additionally

As applied to a jury instruction, plain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.

[State v. Chapland, 187 N.J. 275, 289 (2006) (internal quotation marks omitted).]

"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Where a charging error is alleged, "the qualitative assessment under the plain error rule is different than where other forms of judicial error are assigned since the clear capacity to produce an unjust result is more likely in the case of an erroneous or insufficient instruction to the jury." State v. Pierce, 330 N.J. Super. 479, 488 (App. Div. 2000).

III

The judge decided, after consultation with counsel "in chambers," not to give a "by his own hand" and/or "mere presence" instruction on the lesser-included offenses after the jury's question regarding the definition of murder. Defendant did not object. Nor did he object when the judge provided counsel with copies of the manslaughter instructions during the charge conference.

"Erroneous [jury] instructions on material points are presumed to be reversible error": they possess the capacity to unfairly prejudice the defendant. State v. Nelson, 173 N.J. 417, 446 (2002) (quoting State v. Martin, 119 N.J. 2, 15 (1990)). In this case, after our review of the record, we conclude that the judge's decision not to add the language to the manslaughter instructions did not unfairly prejudice defendant as the point was not material.

The omission was not material because it did not relate to the proofs presented by the State in its opening and closing statement, or overall in its theory of the case. The State sought defendant's conviction only on the theory that he was directly culpable and the actual shooter. Even though Brown testified that defendant asked him for a gun, Brown did not say that defendant asked for his or anyone else's assistance. According to Brown, defendant was only attempting to obtain a weapon for his own use. And the day following the shooting, defendant told Brown that he had killed a man as he was leaving a store.

Defendant bases his contention that the judge erred by failing to give a "by his own conduct" and/or "mere presence" instruction on the jury's question about the murder charge, when joined with the jury's acquittal on the weapons offenses. The question was: "'clarify THE CHARGE OF MURDER [i]f the individual pulled the trigger himself or the individual had someone else pull the trigger.'" (emphasis added). For that reason, defendant argues, the jury could only have found him guilty of aggravated manslaughter based on accomplice liability.

It is true that as the trial judge was reading the murder charge a fourth time, an unidentified juror asked the court to reread the portion regarding the first element of murder, including the "by his own hand" language. But that request, made by only one juror not speaking on behalf of the panel, related solely to the murder charge. No juror asked about the lesser-included offenses. After the judge finished the re-charge as to murder, another unidentified juror stopped the judge stating there was no need for her to reinstruct as to the lesser-included offenses. The foreperson then spoke up and agreed. The jury resumed deliberations, and returned the verdict nearly two hours later.

Defendant speculates that the jury convicted him of aggravated manslaughter only because it did not find him responsible "by his own hand" but involved in the killing nonetheless. Otherwise, defendant asserts, they would have found him guilty of the weapons offenses as well.

But it is well-established that "[c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." State v. Muhammad, 182 N.J. 551, 578 (2005) (citation omitted) (internal quotation marks omitted). Inconsistent verdicts are permissible and provide no basis to set aside a jury's determination of guilt. State v. Grey, 147 N.J. 4, 11 (1996). The Supreme Court has instructed courts not to "conjecture regarding the nature of the deliberations in the jury room." Muhammad, supra, 182 N.J. at 578. We simply do not "speculate whether verdicts resulted from jury lenity, mistake, or compromise." Ibid.

In reaffirming what has come to be known as the Dunne/Powell rule, which permits seemingly inconsistent verdicts to survive, our Supreme Court has held that "[W]e accept inconsistent verdicts and not only when the jury's action benefits a defendant. Such verdicts are permitted 'normally . . . "so long as the evidence was sufficient to establish guilt on the substantive offense[s] beyond a reasonable doubt."'" State v. Banko, 182 N.J. 44, 54-55 (2004) (quoting State v. Petties, 139 N.J. 310, 319 (1995)).

Applying the Dunne/Powell rule, the only question we must answer is whether the State's proofs supported the aggravated manslaughter charge. In this case, the State proffered the confrontation between Gadson and defendant, which defendant lost; the victim's similarity to Gadson; the place of the shooting; defendant's request that Brown bring him a weapon; defendant's inculpatory statement to Brown; the presence of his car at the scene; and that defendant "sold" the car in Pennsylvania to his girlfriend's sister's boyfriend. Hence the alleged inconsistency in the jury's verdict, even if we agreed one exists, is not a basis to set aside defendant's conviction. See, e.g., Grey, supra, 147 N.J. at 11; State v. Crisantos, 102 N.J. 265, 272 (1986). It was not impermissible for the jury to find defendant guilty of aggravated manslaughter while acquitting him of murder and of the firearms offenses. The evidence was sufficient to establish guilt on this charge, standing alone, beyond a reasonable doubt. See Banko, supra, 182 N.J. at 54-55.

IV

N.J.S.A. 2C:1-8(d) requires lesser-included offenses to be charged where there is a rational basis to do so. State v. Ramsey, 415 N.J. Super. 257, 263 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011). Indeed, "aggravated manslaughter and manslaughter are true lesser-included offenses to murder, and can be charged, if warranted, in a murder case with or without [a defendant's] consent." Id. at 264 (footnote omitted).

N.J.S.A. 2C:11-4(a)(1) provides that criminal homicide constitutes aggravated manslaughter when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." We have explained

The Legislature [] enumerated two elements for aggravated manslaughter . . . : (1) a reckless causing of death by the actor and (2) circumstances manifesting extreme indifference to human life. . . . [Recklessness] requires a showing that the actor consciously disregarded a substantial and unjustifiable risk that death will result from his conduct and further [] that the risk [is] of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

The second and distinguishing element of aggravated manslaughter is not defined in the Code. We perceive, however, that the Legislature intended for this second element to require that the recklessness must involve a higher degree of probability that death will result from the actor's conduct . . . .

. . . We envision that the Legislature intended that the degree of risk in reckless manslaughter be a mere possibility of death. In aggravated manslaughter, however, the additional element that death be caused under circumstances manifesting extreme indifference to human life elevates the risk level from a mere possibility to a probability.

[State v. Curtis, 195 N.J. Super. 354, 36364 (App. Div.) (internal quotation marks omitted), certif. denied, 99 N.J. 212 (1984).]

Under this framework, the State's proofs established a rational basis for the judge to charge the lesser-included manslaughter offenses. See Ramsey, supra, 415 N.J. Super. at 263.

Gadson's intervention in the altercation between the two women at the park culminated in his fistfight with defendant, over whom he gained the upper hand. That same day, defendant asked an acquaintance to provide him with a gun. He was overheard saying that he needed a handgun "to do some work," and that "'he had a beef and he needed to take care of it.'" The next day, the victim was shot walking towards that park, and security video footage placed a vehicle similar to defendant's at the scene of the killing. There was reason to believe that defendant mistook the victim for Gadson because of their similar appearance. And the shooter, firing across a street, could not be certain his shot would find its intended target.

Taken together, the State's circumstantial proofs constituted a rational basis for aggravated manslaughter and manslaughter instructions. Because aggravated and reckless manslaughter were viable theories in the case, the judge's charge was not error. See N.J.S.A. 2C:1-8(e); Ramsey, supra, 415 N.J. Super. at 263.

V

Defendant also contends the trial judge erred by excluding Keith's testimony regarding the victim's alleged gang affiliation. "To the extent [that a] defendant is challenging evidentiary rulings by the trial court, . . . those rulings [are reviewed] to determine whether the trial court abused its discretion." State v. J.D., 211 N.J. 344, 354 (2012). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (internal quotation marks omitted).

On the one hand, "all relevant evidence is admissible," "'[r]elevant evidence' mean[ing] evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401 and 402. On the other hand, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of the issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. "[T]he more attenuated and the less probative the evidence, the more appropriate it is for a judge to exclude it under [N.J.R.E. 403]." State v. Medina, 201 N.J. Super. 565, 580 (App. Div.), certif. denied, 102 N.J. 298 (1985).

N.J.R.E. 602 provides, in relevant part: "[A] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." The Supreme Court has explained

A person who has no knowledge of a fact except what another has told him [or her] does not, of course, satisfy the present requirement of knowledge for observation. When the underlying statement is hearsay, there can be no personal knowledge of the substance of the statement, but only knowledge of the fact that the statement was made.

[Neno v. Clinton, 167 N.J. 573, 585-86 (2001) (alteration in original) (citations and internal quotation marks omitted).]

Here, both N.J.R.E. 403 and N.J.R.E. 602 provided a compelling basis for excluding Keith's testimony about the victim's gang membership. The trial judge explicitly relied on N.J.R.E. 403, and implicitly relied on N.J.R.E. 602.

Regarding N.J.R.E. 403, defense counsel's justification for seeking the admission of Keith's testimony was, at best, minimally probative. His testimony, if believed, would have demonstrated only that the victim, while in New York several years before the shooting, was a member of the Bloods.

The victim's putative gang membership, standing alone, however, does not explain the reason his killing was gang-related. The evidence was not that the victim was involved in gang-related business at or around the time of the shooting. Indeed, so far as it appears from the record, the video footage on the day of the shooting revealed no gang activity.

The weapon that killed the victim was found in a portion of Asbury Park controlled by the Bloods. That fact did not transform Keith's testimony into relevant evidence. Even if we assume for the sake of argument that the victim was a member of the Bloods at the time of the shooting, the discovery of the weapon tended to demonstrate only that his cohorts, rather than a rival gang, had possession of the weapon and defendant fails to proffer any reason the victim's own gang would have attacked him. The recovery of the gun coupled with Keith's proffered testimony does not establish that the victim's death had any relation to his membership in the Bloods.

The excluded testimony was at best marginally relevant. See Medina, supra, 201 N.J. Super. at 580. Admission would have risked both prejudice, by discrediting the victim's character, and confusion, by introducing a highly speculative gang-based-killing theory, based on scant fact, into the case. See N.J.R.E. 403. Therefore, the judge did not abuse her discretion by excluding the testimony. See J.D., supra, 211 N.J. at 354.

Turning to N.J.R.E. 602, Keith lacked personal knowledge of the victim's gang membership. He testified that he knew the victim was a member of the Bloods because "[p]eople on the streets" and "friends" had told him. Keith's knowledge came from hearsay, and defendant has not identified an exception to the rule against hearsay applicable to the underlying statements. Thus, for the purposes of N.J.R.E. 602, Keith lacked the required personal knowledge of the victim's gang membership necessary to testify. See Neno, supra, 167 N.J. at 585-86. The judge did not abuse her discretion by excluding that testimony. See J.D., supra, 211 N.J. at 354.

VI

Lastly, we address defendant's claim that his sentence was excessive. The trial judge found aggravating factors three, the risk that "defendant will commit another offense," six, his prior criminal history, and nine, the need to deter him and others from violating the law, N.J.S.A. 2C:44-1(a)(3), (6), and (9). Given this twenty-eight-year-old defendant's extensive juvenile history and single indictable conviction as an adult, sufficient evidence existed in the record to support these factors. She gave only minimal weight to factor six since defendant had only one prior indictable conviction. We do not agree with defendant's assertion that the trial judge should have found mitigating factor eight, as nothing in the record suggests that this shooting resulted from circumstances unlikely to recur. See N.J.S.A. 2C:44-1(b)(8); State v. Dalziel, 182 N.J. 494, 504 (2005).

The trial judge sentenced defendant at the higher end of the sentencing range after concluding that the aggravating factors substantially outweighed any other consideration. See State v. Blackmon, 202 N.J. 283, 297 (2010).

We review sentencing decisions not to substitute our own judgment for that of the trial court, but rather to assess whether the record supports the aggravating and mitigating factors found by the trial court. See State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, then we will uphold the result. Ibid.

Affirmed.

1 Counts seven, eight, and nine charged only defendant's girlfriend, Judy Gonzalez. Although the reasons are not disclosed on record, the court dismissed counts four, five, six, and ten, which related to defendant's alleged attempts at intimidating a witness.

2 In order to distinguish between the victim and his brother, we refer to the latter by his first name.