STATE OF NEW JERSEY v. VASIL W. HEISLER

NOT FOR PUBLICATION WITHOUT THE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.

VASIL W. HEISLER,

Defendant-Appellant.

_________________________________________

July 23, 2015

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-01-0111.

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

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

Appellant filed a pro se supplemental brief.

PER CURIAM

After a jury trial, defendant Vasil W. Heisler was found guilty of first-degree attempted murder (count one), N.J.S.A.

2C:11-3 and N.J.S.A. 2C:5-1; second-degree possession of a firearm for an unlawful purpose (count two), N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon (count three), N.J.S.A. 2C:39-5(b).

Defendant contends, in his counseled brief, that a judgment of acquittal should have been granted; the admission of his three prior convictions was error; the refusal to charge the specific definition of causation was error; and he received a manifestly excessive sentence. In a pro se supplemental brief, defendant argues the court erred by failing to address his contention concerning a lack of standing and jurisdiction, and he was deprived of a fair trial. We disagree and affirm.

I.

The record discloses the following facts and procedural history. Defendant's conviction is the result of a shooting outside a shopping center in Trenton. On July 15, 2007, at approximately 12:00 p.m., defendant, Shannon Heisler (defendant's sister),1 and defendant's ex-girlfriend Melissa Moore were at defendant's residence in Trenton. Defendant asked Moore to take him and Shannon to a local Taco Bell. Moore agreed and the three drove in defendant's white Acura. Moore drove, defendant sat in the passenger seat, and Shannon sat in the back behind defendant.

During the trip, defendant and Shannon began to argue. Moore saw defendant "turn[] around . . . open[] his hand, . . . and wail[] Shannon up side of the head on the left side of her face on the ear." Moore immediately pulled the vehicle into the parking lot of Anthony's Pizza Place on Broad Street. After entering the lot, defendant "yank[ed] open the [car] door and pull[ed] out Shannon by her shirt." Shannon freed herself and "ran towards [the] front . . . windows [of Anthony's]." Shannon reached the windows and turned around to see defendant "in front of her and act[ing] like he's going to upper cut her in the stomach." Alexander Metzler, a patron at Anthony's, saw defendant "grab[ Shannon] and shove[] her pretty hard against the window. The window actually shook a little bit."

Joshua Hahn, a detective with the Mercer County Sherriff's Office, and his father, Richard Hahn, were driving south on Broad Street. Richard drove and Joshua sat in the passenger seat. As they approached Anthony's, Joshua "saw a male and a female fighting. The male was kind of chasing[] . . . the female down, ha[d] just [] grabbed . . . her shoulder and reached around to grab her throat." Richard, who also saw the altercation, stated to Joshua "this doesn't look good," and "pulled the vehicle directly at the confrontation."

Defendant and Shannon "looked at the [approaching vehicle]" and "split apart." Shannon ran past Joshua on the passenger side; defendant "stopped at the window," "[raised] his hands up and stated [to Joshua] . . . what the fuck are you [going to] do." Joshua "opened the door . . . swiftly . . . and stepped out [to] immediately [try and] diffuse the situation." He announced to defendant, "I'm a sheriff's officer, calm down." Joshua did not present any identification and was dressed only in "a pair of cargo shorts . . . and boots."

Defendant responded by briefly "turning and walking away," only to "turn[] back around and [begin] bouncing around." Richard described defendant's bouncing as "[a[lmost like a boxing dance." Joshua, "for a split second, . . . turned to check on [his] father," who was at the rear of the vehicle on the passenger side with Shannon. Shannon had run in front of Richard and was

jumping up and down [and] saying leave him alone, that's my brother. . . . [S]he just kept saying that over and over, don't hurt him, that's my brother and I was telling her[,] we're not going to hurt him, we're trying to help you[, but] she just kept jumping up and down so I sidestepped her, trying to take a couple steps and then she would get right back in front of me again and jump up and down, . . . repeating the same thing over and over.

Joshua turned back to defendant to see him "in mid swing" with "a wooden handle revolver." Defendant struck Joshua on the left side of his head.

Stunned and bleeding, Joshua "immediately said, police officer, get on the ground, let me see your hands."

[A]s the words are coming out of my mouth, [defendant]'s come back into another spin and he's looking directly at my chest . . . . So as he's coming around, I knew it was coming, so, you know, due to my training [as a sheriff's officer], I wanted to jump in to kind of make myself a smaller target[.] . . . I bladed myself and kind of put my hand up to block . . . the weapon but I never . . . made it to it. I got a muzzle flash burn on my wrist from where the muzzle went off and I got [shot] in the chest.

Richard observed defendant "swing[] the gun around," and "yelled gun" right before it discharged. Richard's vision was blocked by Shannon and he only heard the gunshot. Metzler and Moore also did not see the shooting.

Metzler dialed 9-1-1. A recording of that phone call was played for the jury. Emergency responders arrived and transported Joshua to the hospital in Trenton.

Defendant, Shannon, and Moore fled the scene in defendant's white Acura. At trial, Moore recounted defendant's statements

[Prosecutor:] So the three of you are in the car. What does [defendant] say to you as you're driving down South Broad Street?

[Moore:] I pistol whipped him, I pistol whipped him. I [Moore] asked at first, . . . what happened? He said he had shot him.

[Prosecutor:] He said he pistol whipped him?

[Moore:] Pistol whipped him, shot him.

[Prosecutor:] And shot him. Did he say where he shot him?

[Moore:] Stomach.

. . . .

[Prosecutor:] Okay. Was, did [defendant] say anything else about what had just happened?

[Moore:] He just said that [Joshua] kept coming towards him and he pistol whipped him and then shot him.

[Prosecutor:] Okay.

[Moore:] And he said that the guy kept telling him[,] I'm a cop, turn around, get on the ground[.] . . .

[Prosecutor:] Did he say why he didn't do that? Get down on the ground, that is?

. . . .

[Moore:] He had no badge, he had no cuffs, he had nothing, no gun, no proof, . . . nothing.

[Prosecutor:] So he didn't believe him?

[Moore:] He did not believe him.

The trio arrived back at defendant's residence, where Moore parked the white Acura across the street. After going inside, defendant instructed Moore to move the car. Moore declined and, at defendant's request, gave Shannon the keys to "hid[e] the car." Moore left a short time later "to take a shower" and promised to come back within fifteen minutes.

The investigation, with the help of eyewitness interviews, quickly led police to defendant's residence. While on her way back to defendant's house, Moore approached police as they surrounded defendant's residence and offered to help, explaining "[she] was the driver of the incident." Moore was taken to the Hamilton Township Police Department where she gave a statement. Based on her statement, an arrest warrant was issued for defendant.

Defendant, Shannon, and an uninvolved third-party present at defendant's residence were arrested. A search warrant was also executed. Police recovered a revolver, loaded with three rounds, hidden within the floor joist of the basement ceiling. Forensic analysis determined the bullet recovered from Joshua was fired from that gun.

At the conclusion of the State's case-in-chief, defendant moved for acquittal and the dismissal of his indictment, "specifically count one [of] attempted murder." Defendant argued

What is required for attempted murder is that it has to be the actor's conscious object to cause death. As stated in the case law, as stated in the statute and as stated since the inception of the crime[,] giving the State the benefit of all reasonable inferences, there is absolutely no evidence before this jury that even remotely suggests that[,] at the time that the bullet went off and entered the chest of Joshua Hahn[,] . . . it was [defendant's] conscious object to cause his death. And as a result, I would ask the [c]ourt to dismiss those charges.

The trial judge denied defendant's requested relief stating

I do find that there is ample evidence in the record at this point[,] giving the State the benefit of all the reasonable inferences to be drawn from the testimony[,] to support that charge. At this point, as defense [counsel] points out, it has to be defendant's purpose to cause the death of Joshua Hahn. Purpose is a state of mind, they don't have to bring somebody in to say that [defendant] said he was going to do this or he had that particular state of mind[;] you can look and see if a jury could find a state of mind from the totality of the circumstances here and from all the testimony that was provided.

Here[,] we had testimony from, in particular, Joshua Hahn that he was struck by [defendant] who then spun around again and came around and pointed the gun at his chest, looked at his chest and fired it. Using that type of a weapon[,] the fact that he saw the witnesses testifying, alleging and [defendant] looked at his chest when he was shot, I can infer that it was his purpose to shoot and it was his purpose to attempt to kill Mr. Hahn. There is testimony as well from [] Moore . . . [defendant] had told her that I pistol whipped him and then I shot him. And shooting him where he did[,] you could infer or I think a jury could infer that the intent his purpose was to kill at that point.

We also had the testimony of the father who didn't see the shooting but he was in close proximity to it as well, provides some corroboration to what the alleged victim testified to.

With that[,] I do find that there is enough evidence in the record, again, giving the State all the benefit of the inferences that can be drawn from evidence, as I'm required to by the case law, that this particular charge should go to the jury.

Defendant chose not to testify, and the defense rested without calling any witnesses.

Defendant was convicted on all counts. The State moved to impose a mandatory extended term on defendant's attempted-murder conviction since defendant was a repeat Graves Act2offender. The court granted the State's request and sentenced defendant to an aggregate fifty-five year prison term. The judge found aggravating factors three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9); and rejected the application of any mitigating factors. Count two was merged into count one, "based upon defendant's use of the handgun to attempt to kill Mr. Hahn," and a fifty-year prison sentence was imposed on the attempted murder, subject to the eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A five-year term was imposed for count three, subject to a three-year parole disqualifier under the Graves Act, to be served consecutively. This appeal ensued.

II.

On appeal, defendant raises the following issues for our consideration

POINT I

THE MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED ON THE ATTEMPTED MURDER CHARGE BECAUSE THE STATE FAILED TO PRODUCE EVIDENCE THAT IT WAS THE DEFENDANT'S INTENT TO KILL THE VICTIM.

POINT II

THE COURT'S DECISION TO ADMIT THREE PRIOR CONVICTIONS TO IMPEACH THE DEFENDANT'S CREDIBILITY NEGATIVELY IMPACTED HIS RIGHT TO TESTIFY.

POINT III

THE COURT ERRED BY REFUSING TO CHARGE THE SPECIFIC DEFINITION OF CAUSATION PROVIDED IN N.J.S.A. 2C:2-3(b) IN REGARD TO THE ATTEMPTED MURDER CHARGE WHICH WAS ESSENTIAL UNDER THE INSTANT FACTS.

POINT IV

THE DEFENDANT RECEIVED A MANIFESTLY EXCESSIVE AGGREGATE SENTENCE OF 55 YEARS, 45 YEARS TO BE SERVED BEFORE PAROLE, UNDER THE INSTANT FACTS.

In his pro se supplemental brief, defendant makes the following argument

THE TRIAL COURT'S FAILURE TO ADDRESS DEFENDANT'S PRO SE MOTION IN THE NATURE OF MANDATORY JUDICIAL NOTICE ATTACKING LACK OF STANDING AND JURISDICTION, IN THE PRE-TRIAL PHASE, THEN AGAIN FAILING TO PROVE JURISDICTION WHERE THE ISSUE WAS AGAIN RAISED POST-VERDICT, DEPRIVED DEFENDANT OF A FAIR TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE AND DEFENDANT'S 5TH, 6TH, AND 14TH AMENDMENT RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION, ART. 1, PARAS. 1 AND 10.

Defendant argues the court erred by not granting his application to acquit at the end of the State's case because "the State . . . failed to produce any evidence, other than speculation, that [his] purpose was to kill Joshua Hahn." Defendant contends his "intent when the gun went off could not be discerned through the facts adduced at trial," and maintains "the gun was discharged during a physical struggle between the men, and the defendant did not believe that an officer was confronting him." As such, he contends the trial court erred in refusal to enter a judgment of acquittal on the charge of first-degree attempted murder.

On an appeal from the denial of a Rule 3:18-1 motion for acquittal, we review the record de novo in assessing whether the State presented sufficient evidence to defeat the motion. See State v. Bunch, 180 N.J. 534, 548-49 (2004); Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 3:18-1 (2015). "We must determine whether, based on the entirety of the evidence and after giving the State the benefit of all its favorable testimony and all the favorable inferences drawn from that testimony, a reasonable jury could find guilt beyond a reasonable doubt." State v. Williams, 218 N.J. 576, 594 (2014) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)). Presented in that light, and given the facts adduced by the prosecutor, which demonstrate that argument's lack of substance, the claim for this form of relief is without merit and does not warrant further discussion. R. 2:11-3(e)(2).

Next, defendant argues the court erred by agreeing to admit his three prior convictions should he testify. In New Jersey, a witness generally may be impeached with evidence of a prior conviction. See N.J.R.E. 609 ("For the purpose of affecting the credibility of any witness, the witness'[s] conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes."); State v. Sands, 76 N.J. 127, 147 (1978) (holding that prior conviction shall be admissible evidence for impeachment purposes unless danger of undue prejudice substantially outweighs probative value).3 The underlying rationale to that evidential rule is the belief that a person who has lived contrary to society's rules and laws by committing crimes should not be able to shield his credibility from the jury and present himself as a law-abiding individual. See State v. Sinclair, 57 N.J. 56, 64 (1970). A defendant plainly experiences prejudice from such evidence, but prior convictions are normally admissible for impeachment purposes, subject to the court's discretion. See Harris, supra, 209 N.J. at 442 (citing State v. Hamilton, 193 N.J. 255, 256 (2008); State v. Whitehead, 104 N.J. 353, 358 (1986)). Thus, we review such admissibility determinations under an abuse of discretion standard. See State v. Buda, 195 N.J. 278, 294 (2008), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009).

We are not persuaded to substitute our judgment for that of the trial court on this evidential ruling. It was for the trial court to assess defendant's prior convictions' probative value in light of their remoteness, and we cannot say that the trial court erred in that judgment. The question is not whether we would have made a different determination in the first instance. Rather, we apply the normal, deferential standard and conclude that the trial court did not abuse its discretion when it permitted the use of the prior convictions for impeachment purposes. The convictions were not stale by the standard in use for assessing remoteness. See Harris, supra, 209 N.J. at 436, 444-45 (holding two prior convictions more than ten years old admissible where disorderly-persons offenses "bridge[d] the gap"). And, we cannot say that the trial court's assessment of the probative value of the convictions for impeachment purposes was so off the mark as to have rendered defendant's trial unfair.

Defendant next contends the court erred by refusing to charge the specific definition of causation provided in N.J.S.A. 2C:2-3(b) in regard to the attempted murder charge. He argues, since the defense theory was an accidental shooting, causation must be charged. We disagree.

Defendant's argument fails to recognize the fundamental distinction between the mental intent required for the inchoate offense of attempted murder and the completed offense of murder. N.J.S.A. 2C:5-1(a)(2) provides

a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he

. . . .

(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part.

Thus, to establish an attempt under this provision, the State must show that a defendant not only acted "with the kind of culpability otherwise required for the commission of the crime," but also acted or failed to act "with the purpose of causing" whatever "particular result is an element of the crime." Because the "particular result" that is an element of murder is "death," the State must prove that a defendant had a purpose to cause death for the jury to find him guilty of attempted murder. State v. Robinson, 136 N.J. 476, 484-86 (1994). Cf. N.J.S.A. 2C:11-3(a)(1) to (2) (providing that the culpability element of purposeful or knowing murder is "purposely" or "knowingly" causing "death or serious bodily injury"). Therefore, we conclude the charge given to the jury was proper and it was not error to fail to charge causation for the offense of attempted murder.

Finally, in his counseled brief, defendant contends his sentence was manifestly excessive. As to sentencing, we apply the deferential abuse of discretion standard. State v. Robinson, 217 N.J. 594, 603 (2014). However, as always, we address issues of law de novo. Id. at 604. Specifically, we affirm if: (1) the trial court followed the sentencing guidelines; (2) findings of fact and application of aggravating and mitigating factors were based on competent, credible evidence in the record; and (3) the application of the law to the facts does not shock the conscience. State v. Bolvito, 217 N.J. 221, 228 (2014).

First, the sentencing judge posited "whether an extended term is warranted," and he determined it was "under the facts and circumstances of this case." The judge set forth the statutory requirements of age and predicate offense and concluded that the extended sentence was required. He then proceeded to the sentencing.

In finding aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), the judge reviewed defendant's "extensive record," and stated "it's a certainty that defendant will commit another offense if he's not sentenced to a lengthy term in state prison." He found no mitigating factors. Balancing the aggravating and non-existing mitigating factors, the sentencing judge concluded "the aggravating factors substantially and clearly outweigh[ed] the nonexistant mitigating factors."

In imposing the consecutive sentence on count three, the judge noted defendant decided "first to have a handgun, but then to take it out with him when he went out for lunch," which was "a separate and distinct offense from his decision to later use the weapon in the attempted murder." The judge concluded "[u]nder State versus Yarbough,[4] these offenses were predominately independent of each other and those are the reasons why we'll run them consecutive."

After consideration and balancing of aggravating and mitigating factors, the imposed prison term was within the applicable extended range of twenty years to life. See State v. Ghertler, 114 N.J. 383, 388 (1989) (sentencing guidelines are followed if the sentence falls within the range of minimum and maximum penalties enumerated by the state sentencing statute). Further, in light of the evidence, the sentence term is not unduly harsh or patently unreasonable. See State v. Roth, 95 N.J. 334, 364-65 (1984). "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994) (citing Roth, supra, 95 N.J. at 364). That is not the case here.

In his pro se supplemental brief, defendant argues the court erred by not addressing "the nature of mandatory judicial notice attacking lack of standing and jurisdiction" and "failing to prove jurisdiction" which deprived him "of a fair trial in violation of the due process clause" under the federal and New Jersey constitutions. We find defendant's contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 Ms. Heisler was indicted as a co-defendant and pled guilty to fourth-degree resisting arrest, N.J.S.A. 2C:29-2, and third-degree hindering prosecution, N.J.S.A. 2C:29-3. She was sentenced on December 6, 2012, to an aggregate sentence of three years with an eighteen-month parole disqualifier. Her conviction is not the subject of this appeal.

2 N.J.S.A. 2C:43-6(c).

3 In 2014, in the wake of State v. Harris, 209 N.J. 431 (2012), "th[e] Court adopted amendments to N.J.R.E. 609 that favor the general admissibility of prior-conviction evidence that is less than ten years old." State v. T.J.M., 220 N.J. 220, 234 n.5 (2015).

4 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1041, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).