STATE OF NEW JERSEY v. NICHOLAS F WELCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5950-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICHOLAS F. WELCH,

Defendant-Appellant.

_________________________________

November 14, 2016

Submitted October 18, 2016 Decided

Before Judges Fasciale, Kennedy and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-09-1648.

Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

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

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from his convictions for first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) and (2); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); four counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree burglary, N.J.S.A. 2C:18-2(b)(1). We affirm.

A fraternity hosted a private house party and, late in the evening, the hosts stopped admitting guests because the party reached full capacity. Defendant, who was accompanied by a group of friends, approached two females standing outside the residence and announced his intention to enter the house. The hosts refused defendant's entry into the premises, but went in anyway announcing he could enter any house on that block.

The hosts eventually escorted defendant out of the house. A physical altercation ensued between defendant and a host, which left defendant with a bloody face. Defendant walked outside and asked his friends for a gun. He returned to the party, fired into the crowd, and shot five individuals, killing one. Later that evening, defendant approached an individualand asked him to dispose of the gun.

Several eyewitnesses identified defendant as the shooter,including a host who spoke with defendant, and the host who physically fought with defendant. Other witnesses included one of the girls with whom defendant spoke outside the house, and the individual whom defendant had asked to dispose of the gun.

A grand jury indicted and charged defendant with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) and (2) (Count One); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (Count Two); four counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a) (Counts Three, Four, Five, and Six); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (Count Seven); second-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (Count Eight); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Nine); second-degree burglary (armed with a deadly weapon), N.J.S.A. 2C:18-2(b)(1) (Count Ten); and third-degree hindering prosecution, N.J.S.A.2C:29-3(b)(1) (Count Eleven).

Pertinent to this appeal, defendant filed a motion to suppress several out-of-court photographic array identifications, a motion to disqualify the assistant prosecutor, and a motion to dismiss the indictment. The judge denied all three motions.

The judge merged the convictions on Counts One and Seven into the conviction on Count Two, and sentenced defendant to life in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and Graves Act, N.J.S.A. 2C:43-6(c). On Counts Three through Six, the judge imposed four consecutive twenty-year prison terms. On Count Eight, the judge sentenced defendant to a ten-year prison term consecutive to Count Two, subject to NERA and the Graves Act, and he merged Count Nine into Counts Two through Six, and merged Count Ten with Counts Two and Seven.

On appeal, defendant raises the following arguments

POINT I

THE TRIAL COURT SHOULD NOT HAVE ALLOWED THE OUT-OF-COURT IDENTIFICATIONS TO BE USED AT TRIAL BECAUSE THEY DID NOT SATISFY THE CONSTITUTIONAL STANDARDS OF RELIABILITY.

POINT II

THE TRIAL COURT ERRED IN NOT DISQUALIFYING ASSISTANT PROSECUTOR [] AS THE PROSECUTING ATTORNEY BECAUSE DEFENDANT WANTED TO CALL HIM AS A WITNESS TO PROVIDE RELEVANT TESTIMONY RELATED TO PROSECUTORIAL MISCONDUCT WHICH RESULTED IN A VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FUNDAMENTAL FAIRNESS.

POINT III

DEFENDANT'S SENTENCE IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ASSESSMENT OF AGGRAVATING AND MITIGATING FACTORS.

In his pro se brief, defendant raises the following additional points on appeal, which we have renumbered.

POINT [IV]

the trial court erred by denying defendant's motion to suppress his statement because his waiver of his right to remain silent was not knowing[] and intelligent due to the state[']s failure to inform him that an arrest warrant for the murder of "Jessica Moore" had been issued against him. Thus violating the [fifth] amendment right against self incrimination. [State v. A.G.D.], 178 N.J. 56 [] (2003).

POINT [V]

The prosecutor acted improperly in the manner in which he presented the evidence to the grand jury so as to substantially influence the grand jury's decision to indict which is a clear violation of appellant's due process of rights and fundamental fairness.

POINT [VI]

The cumulative effect of the prosecutor's several misconduct issues violated appellant's constitutional right to a fair TRIAL WARRANTS REVERSAL IN ACCORDANCE WITH STATE V. ORECCHIO, 16 N.J. 125 (1954).

We begin by addressing defendant's arguments as to the motion to suppress the out-of-court identifications. We uphold the factual findings underlying the trial court's disposition on a motion to suppress "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Thus, appellate courts should reverse only when the trial court's determination is "so clearly mistaken that the interests of justice demand intervention and correction." State v. Lamb, 218 N.J. 300, 313 (2014) (citation and internal quotation marks omitted). The legal determinations which flow from those findings, however, are afforded no deference and are subject to our de novo review. State v. Coles, 218 N.J. 322, 342 (2014).

Defendant contends evidence of the out-of-court photographic array identifications should have been suppressed because they are unreliable. He emphasizes the incident took place at night, the place where the party was held was dark, one witness was not wearing his prescribed glasses, and that the witnesses were fleeing the violence. The State contends the detectives used the correct procedures, and the identifications were not impermissibly suggestive.

The identifications here occurred before the Supreme Court issued its decision in State v. Henderson, 208 N.J. 208 (2011) (revising the criteria for evaluating out-of-court identifications). As a result, we review defendant's contentions applying a two-pronged test formulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), and adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988). See also State v. Jones, 224 N.J. 70, 86 n.2 (2016).

Under this standard, a court must "first . . . ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006) (discussing the two-pronged analysis in Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).

Impermissive suggestibility is to be determined by the totality of the circumstances of the identification. It is to be stressed that the determination can only be reached so as to require the exclusion of the evidence where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist.

[Madison, supra, 109 N.J. at 234 (emphasis omitted) (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)).]

If the court finds the procedure was not impermissibly suggestive, it need not proceed to the second step. See Henderson, supra, 208 N.J. at 285-86 (indicating that "under Manson/Madison, defendants must show that police procedures were 'impermissibly suggestive' before courts can consider estimator variables that also bear on reliability"). However, if the court finds the procedure to be impermissibly suggestive, it must determine whether there was a "very substantial likelihood of irreparable misidentification." Madison, supra, 109 N.J. at 232 (citation omitted). "If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence." Ibid.

The test requires a court to weigh the suggestive nature of the procedure against the identification's reliability. Id. at 233. In assessing reliability, a court must consider five factors: "the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Herrera, supra, 187 N.J. at 507 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).

Here, the court initially commenced a Wade1 hearing. The judge found, however, that the procedure employed by the detectives "adhered to the Attorney General Guidelines for preparing and conducting photo and live line-up identification procedures[.]" He explained that the "photo display was created by a detective other than the presenter, who had no prior knowledge of the case[,]" it consisted of photographs of other individuals with similar characteristics to defendant, and the photographs were presented "in different numerical positions for each witness." The judge determined "that the identification procedure employed was devoid of any 'impermissibly suggestive' procedures, nor was any evidence adduced which would establish 'some evidence of suggestiveness.'"

There was therefore no need to proceed to the second part of the Manson/Madison analysis because the court did not find that the procedure employed was impermissibly suggestive. Henderson, supra, 208 N.J. at 285-86. Indeed, the trial court is not even required to hold a Wade hearing unless there is some evidence of suggestiveness. See State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd, 135 N.J. 3 (1994). In the absence of any such showing, the reliability factors enumerated by defendant the darkness, panic, absence of prescribed eyewear are for the jury to consider in weighing the value of the identifications and the credibility of witnesses. See Farrow, supra, 61 N.J. at 451.

We conclude defendant's contention that the judge erred by denying his motion to disqualify the assistant prosecutor is "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We add the following brief comments.

"[T]he determination of whether or not to allow a defendant to call the prosecuting attorney as a witness is a matter of discretion for the trial judge based on the issue involved." State v. Alfano, 305 N.J. Super. 178, 187 (App. Div. 1997) (citing State v. Saez, 268 N.J. Super. 250, 266-67 (App. Div. 1993), rev'd on other grounds, 139 N.J. 279 (1995)). We see no abuse of discretion here.

Defendant contends that the assistant prosecutor "manufactur[ed] and misrepresent[ed] facts in furtherance of . . . an intentional fraud before the tribunal with respect to various applications for warrants and court orders." The State argues that the denial of defendant's motion for disqualification was not final because it was denied without prejudice, and that the court's denial was correct because defendant failed to show that the prosecutor was likely to be called as a witness, or that his testimony was necessary. The judge denied defendant's motion without prejudice as premature, and instructed defendant to reapply if and when a subpoena is served. On this record, there is no evidence that defendant served a subpoena on the assistant prosecutor or that defendant renewed his motion for disqualification.

The mere likelihood that a prosecutor will be called to testify, "does not itself disqualify the prosecutor's office from representing the State." State v. Harvey, 176 N.J. 522, 531 (2003). "The law does not liberally permit a defendant to call a prosecutor as a witness. On the contrary, a defendant must demonstrate a compelling and legitimate need to do so." Alfano, supra, 305 N.J. Super. at 189 (quoting United States v. Wallach, 788 F. Supp. 739, 743-44 (S.D.N.Y.), aff'd, 979 F.2d 912 (2d Cir. 1992), cert. denied, 508 U.S. 939, 113 S. Ct. 2414, 124 L. Ed. 2d 637 (1993)). Thus, the judge was correct to deny defendant's motion as premature, absent service of a subpoena.

We reject defendant's contentions that the judge imposed an excessive sentence and failed to make sufficient findings. As to the findings, defendant maintains the court did not consider mitigating factors eight (circumstances unlikely to recur), N.J.S.A. 2C:44-1(b)(8), and eleven (excessive hardship), N.J.S.A. 2C:44-1(b)(11). The State argues that these mitigating factors are inapplicable.

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.

Here, the judge did not abuse his discretion. He found aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk for recidivism); N.J.S.A. 2C:44-1(a)(6) (criminal history and seriousness of crime); and N.J.S.A. 2C:44-1(a)(9) (the need for deterrence). The judge considered and rejected mitigating factor N.J.S.A. 2C:44-1(b)(3) (provocation), the only mitigating factor requested by defense counsel. As to the mitigating factors not requested, the judge stated "[a]ccording to my recollection of the trial testimony, this tragic incident was fueled by your ego; your brazen belief that you were king of the block . . . ." This reflects the view that the underlying incident was fueled by defendant's own ego, and not by extrinsic forces. Likewise, the judge noted that defendant has two children, who both live with their respective mothers. No argument was made why defendant's dependents would face excessive hardship due to his imprisonment, just as no such argument is made on appeal.

Consequently, there is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

We conclude defendant's contentions raised in his pro se brief, that the State violated his Miranda2 rights, the judge erred by failing to dismiss the indictment, and cumulative prosecutorial misconduct warrant reversal, are "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We add the following brief comments.

Defendant contends that the judge erred in denying his motion to suppress his voluntary statement made to the police. Defendant argues his statement to police should have been suppressed because he was never informed of the murder charge against him, and therefore could not properly waive his Miranda rights. See State v. A.G.D., 178 N.J. 56 (2003). The judge had conducted a Mirandahearing. At the hearing, a detective testified that he went to the police department to advise defendant why he was arrested. The detective stated that he told defendant "you're here because you were arrested for murder, possession of a weapon and conspiracy." The judge found the detective's testimony credible and held that there was no deviation from Miranda procedures. It is well-settled that we defer to the trial court's findings of fact so long as they are supported by adequate credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999).

The Fifth Amendment's constitutional protection against self-incrimination extends its reach outside the courtroom to also shield defendants who are in custody and facing interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307 (1980) (indicating that "the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation"). Deferring to the judge's factual findings, which are supported by sufficient credible evidence, we affirm the denial of defendant's motion to suppress his statements.

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).