STATE OF NEW JERSEY v. CHANCE L. HARMON

NOT FOR PUBLICATION WITHOUT THE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.

CHANCE L. HARMON,

Defendant-Appellant.

________________________________

June 3, 2015

Submitted: May 27, 2015 Decided

Before Judges Koblitz and Haas.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-05-01220.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the briefs).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

On May 18, 2011, a Camden County grand jury charged defendant Chance L. Harmon1 in a five-count indictment with first-degree murder, N.J.S.A. 2C:11-3a(1)(2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count four); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(2)(3) (count five).

At the conclusion of the State's case at trial, the judge granted defendant's motion to dismiss counts four and five of the indictment. The jury then found defendant guilty of counts one, two, and three.

At sentencing, the judge merged count two into count one and sentenced defendant to forty years in prison, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count three, the judge sentenced defendant to a concurrent eight-year term, with a three-year period of parole ineligibility. The judge also ordered defendant to serve a five-year term of parole supervision following his release from prison on count one, and imposed appropriate fines and penalties. This appeal followed.

On appeal, defendant raises the following contentions

POINT I

[T.B.]'S TESTIMONY SHOULD HAVE BEEN STRICKEN FROM THE RECORD ONCE SHE RECANTED AND THEN REFUSED TO BE QUESTIONED ABOUT HER RECANTATION BY ASSERTING HER FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION (not raised below).

POINT II

HARMON'S CONVICTION IS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (partially raised below).

POINT III

THE TRIAL COURT'S SENTENCE IS EXCESSIVE IN LIGHT OF HARMON'S YOUTH AND LACK OF CRIMINAL HISTORY.

Defendant raised the following issues in his pro se supplemental brief

POINT I

THE PROSECUTOR[']S OPENING AND CLOSING STATEMENTS, VOUCHING FOR THE CREDIBILITY OF AN EXPERT WITNESS AND EVIDENCE THAT WAS DESTROYED, HAD THE CLEAR CAPACITY TO DEPRIVE DEFENDANT OF A FAIR TRIAL (Not Raised Below).

POINT II

THE PERVASIVE PATTERN OF DESTROYING EVIDENCE BY THE PROSECUTOR AND ITS OFFICERS, VIOLATED DEFENDANT[']S DUE PROCESS RIGHTS TO A FAIR TRIAL AND THE RIGHT TO TEST THEIR EVIDENCE.

POINT III

THE DEFENDANT MAINTAINS THAT ANOTHER PERSON COMMITTED THE MURDER AND THAT HE WAS DEPRIVED IN PRESENTING A THIRD[-]PARTY GUILT CLAIM. (Not Raised Below).

POINT IV

THE TRIAL JUDGE COMMENTS AND JUDICIAL INTERVENTION DURING TRIAL VIOLATED DEFENDANT[]S DUE PROCESS RIGHTS WHEN THE JUDGE ATTEMPTED TO COERCE THE DEFENDANT INTO TAKING A PLEA BARGAIN DURING THE MIDDLE OF TRIAL, THEREFORE REQUIRING A REVERSAL OF HIS CONVICTION.

POINT V

TRIAL COUNSEL['S] FAILURE TO REQUEST A WADE HEARING TO CHALLENGE THE DIFFERENT DESCRIPTIONS WITH RESPECT TO THE PERPETRATOR, VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION AND THE STATE AND FEDERAL PRECEDENTS.

POINT VI

THE CUMULATIVE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED.

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions, but reverse and remand for resentencing.

I.

The State developed the following proofs at trial. On March 7, 2010, sixteen-year-old Anthony Ross and three of his friends, B.E., E.E., and N.W.,2 were at E.E.'s house so E.E.'s father could give them haircuts. At approximately 5:00 p.m., the boys left the house and went to a local convenience store to buy snacks. After making their purchases, the boys began to walk back to E.E.'s home. Along the way, they met three girls, including T.B. and E.H.3 T.B. had been dating Ross for approximately seven months. T.B. testified she had also been intimate with defendant, but was not in a dating relationship with him.

T.B. began to talk to Ross and she then received a call on her cell phone. About thirty seconds later, defendant appeared from around the corner and approached the group. Defendant asked the boys, "Who was Anthony?" Ross replied that he was Anthony. Defendant stated that he wanted to fight Ross, but Ross declined and the boys returned to E.E.'s house.

The boys went into the enclosed porch area of the house, while the girls remained outside. While the boys were inside the house, T.B. testified defendant appeared and asked her if Ross was in the house. T.B. told defendant that Ross had gone to another part of the city. Defendant then left.

About twenty minutes after they arrived at the house, the four boys went outside again and talked with the girls. Another boy, who was B.E.'s friend, stopped by to see if the group wanted to play basketball, but they declined the invitation and the boy left.

Soon thereafter, the group saw defendant riding up on the handlebars of a bicycle driven by another male. After again asking Ross to identify himself, defendant pulled out a handgun and shot Ross seven times. Ross died from his wounds.

At trial, the State presented the testimony of B.E., E.E., N.W., T.B, and E.H. All but N.W. positively identified defendant as the shooter, both to the police and at trial.

Defendant did not present any witnesses and did not testify on his own behalf.

II.

After both sides had rested at trial, and just prior to their summations, defendant's attorney advised the judge that his client had given him a handwritten letter that appeared to be from T.B. Defense counsel could not authenticate the letter, but stated

It appears to be [from T.B.] And it contains statements that she wanted to testify differently than she did in court before the judge and jury last week. There were unsubstantiated allegations of some coercion at least on the part of the prosecutor's office, which I discount, and there were allegations that she wanted to say more than she did and she wanted to testify differently than she did but she felt that she could not because she was pressured with issues of contempt and other issues.

Now, I'm not asking, I'm being very clear about this, I am not asking for a mistrial.

Defendant's attorney asked for a brief adjournment so he could contact T.B. and question her about the letter at a Rule 104 hearing. The judge granted the adjournment, and the prosecutor assisted in locating T.B., who was staying in a shelter at that time.

Later that day, T.B. appeared in court accompanied by a Division of Child Protection and Permanency case worker, who had also been present during T.B.'s testimony at trial.4 The judge also arranged for an attorney to represent T.B. At the Rule 104 hearing, T.B. invoked her Fifth Amendment rights and refused to answer any questions about the letter.

The trial was then adjourned for a week.5 When the trial resumed, the judge conducted a brief colloquy with counsel, and asked the prosecutor whether the State would pursue perjury charges if T.B. took the stand and testified differently than she had prior to the close of the case. The prosecutor stated, "I can't say that we would 100 percent file the charges, Your Honor, but it is a serious potential. I would have to speak with the juvenile unit about that since she is still a juvenile."

Defendant's attorney asked that he be permitted to call T.B. to testify before the jury so that it could hear her invoke her Fifth Amendment rights concerning the letter. Again, however, counsel "agree[d] there may be some ambiguity as to whether or not she's recanting, whether or not she's explaining . . . ." The judge again confirmed with T.B. that she would not testify about the letter. Finding that "[t]here's no way [the letter] can be authenticated[,]" the judge ruled that defendant could not call T.B. to testify for the sole purpose of having her invoke her Fifth Amendment rights when asked about the letter.

In Point I of his brief, defendant argues as a matter of plain error that the judge should have stricken T.B.'s testimony from the record "once she recanted and then refused to be questioned about her recantation . . . ." We disagree.

We review the claimed error under the plain error standard. R. 2:10-2. Under that standard, an appellate court will not reverse a jury s verdict unless the error was "of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid.; accord, State v. Stas, 212 N.J. 37, 49 (2012). The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011).

Applying this standard, we discern no error, plain or otherwise, in the judge's handling of this issue. As the judge correctly found, defendant did not present any evidence authenticating the letter as having been written by T.B. "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999) (citing N.J.R.E. 901). Defendant did not testify at the Rule 104 hearing concerning the letter and defense counsel conceded he had no evidence that T.B. wrote it.

Moreover, even if the letter could have been authenticated as having been written by T.B., she did not recant her trial testimony in the letter. Instead, the author of the letter apologizes to defendant for having testified against him and states that he or she would have testified differently had the prosecutor permitted the author to do so. Indeed, defense counsel agreed that the letter was ambiguous as to whether T.B., if she was the author, was recanting her prior testimony.

Thus, this matter is plainly distinguishable from State v. Feaster, 184 N.J. 235 (2005), the case primarily relied upon by defendant. In Feaster, the defendant filed a petition for post-conviction relief (PCR) following his conviction for murder. Id. at 239. In support of his petition, a key witness at the defendant's trial gave the PCR attorneys a "certified statement" recanting his trial testimony. Id. at 239-40. However, after the prosecutor stated the witness would be prosecuted for perjury if he testified, the witness "withdrew his certified statement and invoked his Fifth Amendment privilege against self-incrimination" at the PCR hearing. Ibid.

Under these circumstances, the Court found that the State had interfered with the "witness's decision to testify for [the] defendant" and ordered that two alternate remedies be considered by the PCR judge in determining whether the defendant was entitled to a new trial. Id. at 261-64. First, the State could grant the witness "testimonial use immunity" for his testimony at the PCR hearing. Id. at 263. In the alternative, the PCR court could consider whether the "absence" of the witness's testimony "would have the probable effect of raising a reasonable doubt as to the defendant's guilt" in the minds of the jury, thus warranting a new trial. Id. at 264 (internal quotation marks omitted).

Here, there was no basis for the judge applying either of the Feaster remedies. Unlike in Feaster, where the authenticity of the witness's certification was unquestioned, defendant's attorney could not authenticate the letter his client provided him as having been written by T.B. In addition, in Feaster, the witness's certification was a clear recantation of his trial testimony. That was not the situation in this case where the letter, if actually written by T.B., was at best ambiguous as to whether she was recanting her prior testimony or merely apologizing to defendant for having testified against him.

Finally, T.B. made her decision not to testify about the letter and to invoke her Fifth Amendment rights after consulting with her own attorney a week before the prosecutor, in response to the judge's questions, stated it was possible the State would prosecute T.B. for perjury if she changed her trial testimony. Thus, there is no evidence in the record that the prosecutor interfered with T.B.'s decision to provide further testimony at the trial. Therefore, the judge did not err by failing to strike T.B.'s trial testimony sua sponte.6

III.

In Point II, defendant contends that his conviction was against the weight of the evidence. We note that defendant did not file a motion in the trial court seeking a new trial on the ground that the jury's verdict was against the weight of the evidence. Rule 2:10-1 provides that "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." We have nevertheless chosen to address defendant's contention in the interest of justice. State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001).

When determining whether the prosecution in a criminal case produced sufficient evidence to support a conviction, an appellate court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Kittrell, 145 N.J. 112, 130 (1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)). This standard requires deference to the fact finder's role in determining the credibility of witness testimony, weighing evidence, and making reasonable inferences based on that evidence. Ibid. Our objective "is not to second-guess the jury but to correct [an] injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997).

Applying these standards, we discern no basis for disturbing the jury's verdict. The State presented the testimony of four eyewitnesses who each identified defendant as the individual who shot the victim. Although the witnesses' accounts differed in some respects, such as in their descriptions of the specific clothing defendant was wearing or the color of the handgun he used, all of the witnesses testified that defendant shot the victim. Thus, even if T.B.'s account of the shooting were discounted, there was ample evidence to support the jury's conclusion that defendant murdered the victim with a handgun. Thus, we reject defendant's arguments on this point.

IV.

We have fully considered the contentions defendant raised in his supplemental brief. Based upon that review, we conclude that defendant's supplemental arguments are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).

V.

Finally, in Point III of his brief, defendant argues that the judge failed to adequately explain the reasons for sentencing defendant to an aggregate forty-year term. We agree and, therefore, we remand for resentencing on all three counts.

The Supreme Court has recently emphasized that, "[i]n fixing a sentence within the statutory range, a judge must determine whether specific aggravating or mitigating factors are grounded in credible evidence in the record and then weigh those factors." State v. Case, 220 N.J. 49, 54 (2014). The trial court must also explain how it conducted the weighing process. Id. at 65; State v. Fuentes, 217 N.J. 57, 73-74 (2014). As the Court emphasized in Fuentes, "[a] clear explanation of the balancing of aggravating and mitigating factors with regard to imposition of sentences and periods of parole ineligibility is particular important." Supra, 217 N.J. at 73 (internal quotation marks omitted).

This standard was not met in the case at hand. The forty-year sentence the judge imposed on count one was ten years more than the thirty-year minimum sentence established in N.J.S.A. 2C:11-3b(1). The eight-year concurrent term on count three was also well above the five-year minimum sentence for second-degree offenses. N.J.S.A. 2C:43-6a(2). However, the judge never explained how she determined those sentences.

The judge found aggravating factor three, N.J.S.A. 2C:44-1a(3) ("[t]he risk that the defendant will commit another offense"), and nine, N.J.S.A. 2C:44-a(9) ("[t]he need for deterring the defendant and others from violating the law").7 However, the judge also found that defendant's prior juvenile record, which did not include any violent offenses, was insufficient to warrant finding aggravating factor six, N.J.S.A. 2C:44-1a(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"). In light of the judge's decision not to find aggravating factor six, her rationale for applying aggravating factor three is not fully apparent from the record.

In addition, the judge did not clearly explain how she weighed the aggravating and mitigating factors in determining the length of the sentences. The judge merely stated that she "place[d] some weight on . . . aggravating factor three[,]" and "great weight on aggravating factor number nine . . . ." With regard to aggravating factor nine, the judge stated that "a strong message must be sent to this defendant and the public that this behavior will not be tolerated." The judge did not explain why that message would not have been as effective had she imposed a sentence at, or closer to, the thirty-year term prescribed for count one, or the minimum five-term term applicable to count three.

For these reasons, we are constrained to remand this case to the trial court for reconsideration of the sentence.

Defendant's convictions are affirmed. We remand for resentencing. We do not retain jurisdiction.

1 Defendant was seventeen years old at the time of the offenses involved in this case. On October 20, 2010, the Family Division granted the State's motion for a waiver of juvenile jurisdiction pursuant to N.J.S.A. 2A:4A-26a(2)(a).

2 In order to protect their privacy, we use initials to identify the witnesses who testified in this case.

3 The third girl was not fully identified at trial and was not called as a witness.

4 T.B. had been in the Division's custody since May 2012.

5 It appears that the lengthy adjournment was the result of the judge having to attend to matters not relevant to the case at hand.

6 Defendant argues that his trial attorney was ineffective because he did not ask the judge to strike T.B.'s testimony. Because the Supreme Court has expressed a preference for resolving ineffective assistance of counsel claims on collateral review, rather than on direct appeal, we decline to consider defendant's contention. State v. Preciose, 129 N.J. 451, 459-60 (1992). Defendant may raise his claim in a petition for PCR. State v. Castagna, 187 N.J. 293, 313 (2006).

7 The judge found that only mitigating factor six, N.J.S.A. 2C:44-b(6), applied because the judge stated she would order defendant to pay restitution. However, the judge did not conduct a restitution hearing or set the amount of restitution. Instead, the judgment of conviction merely states that restitution would be "open for 30 days[.]"