STATE OF NEW JERSEY v. AHMAD TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5263-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AHMAD TAYLOR a/k/a AHAMD

TAYLOR,

Defendant-Appellant.

_____________________________________

February 25, 2014

Submitted December 16, 2013 Decided

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-05-0958.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ahmad Taylor was tried before a jury and found guilty of passion/provocation manslaughter and unlawful possession of a handgun. He appeals from the judgment of conviction entered by the trial court on April 16, 2012. We affirm.

I.

Defendant was charged under Essex County Indictment No. 11-05-0958, with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four).

At the trial, the State presented evidence, which indicated that the victim, Amir McLean, resided in an apartment in Newark with Samantha Jarrells and her three children. Jarrells is defendant's aunt. Late in the afternoon of January 16, 2011, Tyhirah Borden and others were at the apartment. Jarrells also was there with her children. McLean was not at home, but he arrived a short while later. The group was drinking wine and listening to music.

At around 6:00 p.m., Jarrells called defendant and told him that, earlier that day, defendant's sister, Jennifer Jarrells, got into an altercation with some other girls. According to Jarrells, a man got involved and "smacked" Jennifer. Jarrells wanted defendant to come to the apartment and talk to the man who had struck Jennifer. About an hour later, defendant and his friends came to the apartment.

Jarrells called one of the girls who had been involved in the altercation. According to Jarrells, during the call, defendant grabbed the phone. He showed Jarrells a gun that he had tucked in the waistband of his pants. Defendant said he was going to use the gun when dealing with a female who also was involved in the incident. He said he would "bust her ass." Jarrells told defendant to put the gun away because there were children in the apartment and she did not "want him to do no violence to nobody with . . . no gun."

It appears that McLean did not want defendant's friends in the apartment, and Jarrells told them to leave. They left, but defendant remained. McLean went to the bedroom in the rear. Jarrells was in the kitchen with Borden and Borden's boyfriend, Jahid Green-Swepson (Swepson). Jarrell's children were in another bedroom. Defendant was sitting on a couch in the living room.

McLean came out of the bedroom and asked Jarrells for some wine. Jarrells ignored him and they got into an argument. Jarrells attempted to put some music on, but McLean threw some compact discs (CDs) out the window. McLean then went to the refrigerator, got the wine and went back into the bedroom.

Defendant had been in the bathroom, and when he came out, he asked Jarrells, "[W]here the CDs at?" Jarrells told him that McLean had thrown the CDs out the window. Defendant became upset. Borden said she offered to go outside and retrieve the CDs, but defendant ignored her. According to Borden, defendant said he was going to make McLean pick up the CDs. Defendant went to McLean's bedroom. Borden followed.

Borden testified that defendant entered the bedroom and told McLean to "pick up these mother fucking CDs." McLean had been lying on the bed, watching television. He stood on the bed and said, "Who the fuck is you talking to?" Borden said McLean put up his hands "like in fists" and appeared as if he was "ready to fight."

A few seconds later, defendant drew a gun from a blue laundry bucket in Jarrells' closet. McLean pushed Borden to the floor. Borden testified that she saw defendant shoot McLean twice. She said McLean "was on the bed the whole time."

Defendant testified that he went to the bedroom and asked McLean why he had thrown the CDs out the window, and McLean replied that he did so because he "felt like doing it." Defendant said McLean moved towards him and drew a gun from the closet. Defendant stated that he wrestled the gun from McLean but was unable to leave the room. Defendant is 5'10" tall and weighs about 160 pounds, whereas McLean was 5'9" and weighed 280 pounds. Defendant claimed that he feared turning his back on McLean. He said he had "no choice" but to shoot McLean twice, since he did not know whether McLean had other weapons in his room.

Jarrells ran to the bedroom when she heard the gunfire. She said McLean had his hand on his stomach and stated, "He shot me." Borden testified, however, that McLean said to Jaarrells, "Bitch, your nephew shot me." Borden also testified that defendant stood by the door "for a hot second" and Jarrells asked him what had he done. The police were called, but McLean died before they arrived.

Defendant left the apartment. He testified that he threw the gun under a nearby dumpster. Defendant then entered another building in the area. Defendant called his sister and told her that McLean had tried to kill him. Defendant remained in the building until the following morning. He thereafter returned to his own residence and turned himself into the police later that day.

The jury found defendant not guilty of murder, as charged in count one, but guilty of the lesser-included offense of passion/provocation manslaughter. The jury also found defendant guilty of unlawful possession of a handgun, as charged in count three. The jury found defendant not guilty of possession of a weapon for an unlawful purpose (count two), and endangering the welfare of a child (count four). Defendant later filed a pro se motion for a new trial.

On April 16, 2012, the court denied defendant's motion and sentenced him to ten years of imprisonment for the manslaughter, with a period of parole ineligibility and three-year period of parole supervision upon release, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 The court imposed a concurrent, ten-year term of incarceration for the unlawful possession of a weapon, with a five-year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6. The court also imposed appropriate monetary penalties and assessments. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

THE STATE'S ARGUMENT IN SUMMATION THAT DEFENDANT SHOULD BE CONVICTED BECAUSE "[I]N MURDER, YOU . . . DON'T SEE THE VICTIM" CONSTITUTED PROSECUTORIAL MISCONDUCT NECESSITATING REVERSAL.

POINT II

THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY THAT THE PRIOR INCONSISTENT STATEMENTS CONTAINED IN THE POLICE REPORTS OF KEY STATE WITNESSES WERE ADMISSIBLE AS SUBSTANTIVE EVIDENCE (Not Raised Below).

POINT III

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

II.

Defendant argues that his conviction should be reversed because of certain remarks that the assistant prosecutor made in final part of his summation. The prosecutor said McLean was twenty years old when he was murdered, and he had "a right to justice, too." The prosecutor stated that, unlike other cases, in a murder case, "the victim doesn't testify." The prosecutor added that in other cases, the victim is "on the stand" but in a murder case, you do not "see the victim."

After the prosecutor completed his summation, the jury left the courtroom for a lunch break. Later, defendant moved for a mistrial, arguing that the prosecutor had inappropriately appealed to the jurors' emotions. The court denied defendant's motion, but provided the jury with a curative instruction. the judge told the jurors:

Towards the conclusion of his summation, [the prosecutor] made some comments about the victim. You should disregard those remarks, not consider [them] during your deliberations.

Really, there are two reasons.

First, as I said during the preliminary instructions, what the lawyers say during their openings or summations are not evidence. They are the arguments of counsel.

And secondly, and more importantly, your job, which I'm going to go over again with you in our closing instruction is to decide the case on the facts and the evidence presented, not on any sympathy, bias, or prejudice towards either party. Okay?

On appeal, defendant argues that the prosecutor's summation veered "into the realm of pure emotional appeal." He contends that that the court's curative instruction was inadequate and the judge's refusal to grant a mistrial due to the prosecutor's "unvarnished appeal" to the jury's sympathy denied him a fair trial, as guaranteed by the Sixth Amendment to the United States Constitution, and Article 1, paragraph 10 of the New Jersey Constitution.

In assessing whether prosecutorial misconduct, such as improper remarks in summation, requires reversal of a conviction, an appellate court should determine whether the conduct was so egregious that it deprived the defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). In making this determination, the court considers: (1) whether defense counsel made a timely objection; (2) whether the remark was withdrawn promptly; (3) whether the trial judge ordered the remarks stricken; and (4) whether the judge instructed the jury to disregard them. Ramseur, supra, 106 N.J. at 322-23.

Here, the prosecutor's remarks were not improper. The prosecutor merely noted that McLean was the victim of the alleged murder, and therefore he could not be present to testify as to what occurred on the evening of January 16, 2011. The prosecutor's brief reference to the victim's absence was not, as defendant claims, a blatant appeal to the jury's emotions or an improper attempt to generate sympathy for the victim.

Even if we viewed the prosecutor's comments as improper, a mistrial was not warranted. The comments were not in any sense egregious. Moreover, the trial judge instructed the jury to disregard the comments and not to consider them in its deliberations. We must presume that the jury followed the court's instruction. State v. Miller, 205 N.J. 109, 126 (2011) (citing State v. Nelson, 173 N.J. 417, 447 (2002)). Furthermore, there is nothing in the record which suggests that the jury did not do so.

III.

Defendant argues that the trial judge erred by failing to provide the jury with an instruction on the use of prior inconsistent statements of witnesses. Because this argument was not raised in the trial court, we must determine whether the court's failure to provide the instruction was erroneous and, if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2.

Defendant contends that there were inconsistencies between the testimony of Jarrells, Borden and Swepson and the statements these witnesses gave to the police. According to defendant, the judge was required to instruct the jury that a witness's prior inconsistent statement may be considered in assessing the witness's credibility and "as substantive evidence or proof of the truth of the prior inconsistent contradictory statement or omitted statement." See Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994).

In State v. Hammond, 338 N.J. Super. 330, 340-41 (App. Div.), certif. denied, 169 N.J. 609 (2001), the State presented the testimony of two witnesses who said they saw defendant shoot and kill the victim. However, immediately following the murder, these witnesses denied having any knowledge of the incident. Ibid. We held that the charge on prior inconsistent statements was not required because the prior statements were blanket denials of any knowledge of the crime, "rather than an alternative version of the crime scenario." Id. at 343.

The instruction was not warranted because the prior statements lacked any significant substantive exculpatory value. Ibid. We explained that

because the import of the out-of-court prior inconsistent statements went solely to the issue of credibility and they had no substantive exculpatory value of their own that is relevant to the jury instruction on prior inconsistent statements of witnesses, such an instruction was not needed to protect defendant's rights. On the contrary, we are satisfied that the jury, as instructed on credibility by the court, and as informed by its common sense and relevant life experience, was fully qualified to determine the credibility or lack of credibility of both eyewitness versions. The jury was able to do this with no less capacity than if it had been instructed that it might consider as substantive evidence the witnesses' original denials of any knowledge of the crime.

[Ibid.]

Here, Jarrells testified that defendant had a gun when he arrived at her apartment, but Jarrells admitted that she did not give this information to the police when she was questioned after the incident. Jarrells also admitted that she did not tell the police defendant had spoken to a girl who had a dispute with his sister, as she testified at trial. Jarrells' prior statements did not, however, have significant substantive exculpatory value.

As the State points out, Jarrells did not witness the shooting. She testified that defendant became angry when McLean threw the CDs out the window and went to the bedroom to confront him. Defendant did not deny shooting McLean. He claimed that he wrestled the gun from McLean and shot him. Defendant stated that McLean could have shot him and he had "no choice" but to shoot McLean. Thus, the focus of the case was on what defendant did with the gun in the bedroom, not on whether he had a gun beforehand.

In any event, defense counsel's comments in summation showed that defendant was not prejudiced by the absence of the instruction on prior inconsistent statements. Defense counsel told the jury that, on the night McLean was killed, the police asked Jarrells three times whether defendant came to the apartment with a gun, and Jarrells told the police she did not see defendant with a gun. Defense counsel stated that Jarrells told the police the truth that night, and that while Jarrells testified that she lied to the police because she was afraid the State's child protection agency would remove Jarrells' children, that explanation did not "make any sense."

The jury was later instructed that it could consider Jarrells' prior statement in assessing her credibility. The jury could have determined, as defense counsel argued, that Jarrells told the police the truth when she said she did not see defendant with a gun on the night McLean was killed. The jury could have relied on defendant's testimony regarding the gun as substantive evidence, if it chose. Moreover, the jury acquitted defendant on the charges to which this testimony was most relevant, specifically murder and possession of a handgun for an unlawful purpose.

Defendant additionally argues that the instruction on prior inconsistent statements was required due to certain statements that Borden made. Borden told the police that defendant shot McLean with his left hand, but testified at trial that defendant shot McLean with his right hand. Borden's prior statement that defendant shot the gun with his left hand did not have significant substantive exculpatory value because defendant testified at trial he fired the shots with his right hand.

In her trial testimony, Borden also admitted that she lied to the police about her age and address, and did not tell the police she volunteered to retrieve the CDs that McLean had thrown from the window. However, the inconsistencies regarding Borden's age and address related solely to her credibility. Moreover, whether Borden offered to retrieve the CDs to head off a confrontation was not material to defendant's guilt or innocence. Defendant admitted that he confronted McLean about the CDs.

As further support for his argument, defendant relies upon a prior statement that Swepson made. Swepson told the police that McLean was "de man" who wanted "his stuff right there and then."1 However, this statement did not have significant substantive exculpatory value, as it was undisputed that McLean had tossed the CDs out the window when he did not get wine after he demanded it. Furthermore, to the extent Swepson's prior statement supported defendant's passion/provocation defense, the jury accepted that defense. Thus, defendant cannot show that he was prejudiced by the absence of the instruction on prior inconsistent statements.

In sum, the trial judge did not err by omitting the instruction on prior inconsistent statements of witnesses. However, even if the judge erred by failing to provide this instruction, the error was not one "clearly capable of producing an unjust result." R. 2:10-2. The prior inconsistent statements did not have significant substantive exculpatory value, and the court's instruction on the credibility of witnesses was sufficient to guide the jury's consideration of the testimony.

IV.

Defendant additionally argues that his sentence is excessive and unduly punitive. Again, we disagree.

Here, the trial judge found the following aggravating factors: three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The trial court did not find any mitigating factors.

At sentencing, the judge noted that at the time defendant was sentenced he was twenty-two years old. As a juvenile, defendant had been adjudicated a delinquent seven times. As an adult, defendant had been arrested three times. The present offense was defendant's second indictable conviction. The judge pointed out that defendant shot and killed McLean fourteen days after he was released from jail.

As we noted previously, the judge sentenced defendant to ten years of imprisonment for the passion/provocation manslaughter, with a period of parole ineligibility as prescribed by NERA. The judge also sentenced defendant to a concurrent ten years of incarceration for the unlawful possession of a weapon, with five-year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6.

Defendant contends that the judge erred by finding aggravating factor nine. He contends that judge failed to explain why there was a need to deter defendant and others from violating the law. Defendant says the judge's finding was merely an "invocation" to general deterrence which should have been afforded little weight. We do not agree. The judge provided sufficient reasons to find this aggravating factor. Moreover, the need to deter defendant and others from committing the offenses for which defendant was convicted is obvious.

Defendant next argues that the judge should have found mitigating factor four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify defendant's conduct), and five, N.J.S.A. 2C:44-1(b)(5) (the victim induced or facilitated defendant's conduct). Defendant maintains that the judge substituted his personal belief for the jury's verdict when he used the term "murder" in finding that these mitigating factors do not apply. However, the judge apparently misspoke because the sentencing transcript indicates that the judge fully understood that defendant was being sentenced for passion/provocation manslaughter, not murder.

Furthermore, the judge correctly determined that mitigating factors four and five did not apply. In State v. Teat, 233 N.J. Super. 368, 372 (App. Div. 1989), we held that when an individual is convicted of passion/provocation manslaughter, the sentencing judge may not apply mitigating factor three, N.J.S.A. 2C:44-1(b)(3) (defendant acted under a strong provocation). We noted that the defendant had already received the benefit of mitigating factor three when the jury considered the provocation to reduce the murder charge to second-degree manslaughter. Ibid. Considering "strong provocation" again for sentencing purposes "would improperly double count a mitigating factor." Ibid.

This reasoning applies to mitigating factors four and five, since defendant essentially relies upon the same "provocation" as support for finding those factors. Considering the "provocation" as a substantial ground to justify the homicide, or as an inducement or facilitation of the offense, would also represent the sort of impermissible double counting we ruled out in Teat.

We conclude that defendant's sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

1 There is some doubt as to whether Swepson's prior statement was inconsistent with his trial testimony. On cross-examination, Swepson denied ever saying McLean was "demanding." Defense counsel then confronted him with his prior statement, in which he referred to McLean as "de man." The two statements do not appear inconsistent.