STATE OF NEW JERSEY v. ERIC D. BULLA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1224-04T41224-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC D. BULLA,

Defendant-Appellant.

______________________________

 

Submitted October 18, 2005 - Decided

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Morris County,

03-03-0260.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jay L. Wilensky,

Assistant Deputy Public Defender, of

counsel and on the brief).

Michael M. Rubbinaccio, Morris County

Prosecutor, attorney for respondent

(Joseph Connor, Jr., Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions on charges stemming from events beginning on the night of February 7, 2002. He appeals, as well, from the sentences imposed on those convictions. We affirm the convictions, but remand for re-sentencing.

In Morris County Indictment No. 03-03-00260-I, returned on March 12, 2003, defendant Eric Bulla was charged with: first-degree robbery, N.J.S.A. 2C:15-l(a)(2) (Count One); first-degree carjacking, N.J.S.A. 2C:15-2 (Count Two); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (Count Three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Four); three counts of third-degree making terroristic threats, N.J.S.A. 2C:12-3a (Counts Five, Six, and Eight); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d (Count Seven); fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3f (Count Nine); three counts of fourth-degree aggravated assault,

N.J.S.A. 2C:12-lb(4) (Counts Ten, Eleven, and Twelve); second-degree eluding, N.J.S.A. 2C:29-2b (Count Thirteen); and second-degree possession of a weapon by a prohibited person ("certain persons"), N.J.S.A. 2C:39-7 (Count Fourteen). Defendant was also accused of several motor vehicle violations which were tried by the judge simultaneously with the trial of the criminal charges by the jury. See R. 3:15-3.

A jury trial was held between March 3 and March 11, 2004. Prior to trial, Counts Five, Six and Eight of the Indictment, charging terroristic threats, were dismissed on the State's motion. Additionally, Count Fourteen, the "certain persons" charge, was severed. Finally, Count Seven (possession of a defaced firearm) was dismissed during the trial.

Defendant was convicted of all criminal charges for which he was tried, other than possession of hollow-point bullets, as to which he was found not guilty. The judge also found the defendant guilty of one motor vehicle offense and not guilty as to the other motor vehicle charges. Thereafter, on April 16, 2004, defendant pled guilty, pursuant to a negotiated agreement, to the severed "certain persons" charge.

Defendant was sentenced on May 14, 2004. The court ordered the merger of the robbery conviction into the carjacking conviction. The court then imposed a custodial sentence of twenty-two years on the carjacking conviction, subject to the No Early Release Act, and a consecutive custodial sentence of eight years on the eluding conviction. The Court also imposed fifteen-month concurrent sentences on two of the convictions for aggravated assault and a consecutive fifteen-month sentence on the remaining aggravated assault conviction. Defendant objects to the length of these sentences and the imposition of the two consecutive sentences.

Additionally, the Court imposed a four-year custodial sentence on the conviction for unlawful possession of a weapon and a five year custodial term on the "certain persons" conviction, to run consecutively to the sentence for unlawful possession; and a seven year concurrent custodial sentence for the conviction of possession of a weapon for an unlawful purpose, with three years of parole ineligibility. Appropriate monetary fines and assessments were imposed on these convictions and on the motor vehicle charge of which defendant was convicted. Defendant raises no objection to these sentences.

Because defendant does not contest the sufficiency of the evidence, which was overwhelming, we condense our recitation of the facts underlying the indictment. On February 7, 2002, Tahida Nelson and Emmabell Aquino attended a party at the College of St. Elizabeth, at which they were students. After the party, they met several friends. As the group was preparing to leave the college grounds, one of their number, Darris Davis, became involved in an argument with defendant, Eric Bulla. Ms. Aquino and Ms. Nelson were able to separate the antagonists, after which Ms. Nelson and Ms. Aquino drove off in one car while the balance of their party left in another. When they stopped at a service station to put air in a tire of one of the cars, two other vehicles pulled into the gas station. Defendant exited from one, pulled a revolver, and pointed it at two of the party, Darris Davis and Bashere Moyd. When Ms. Aquino exited her car, in at attempt to defuse what she thought was a continuation of the earlier argument, defendant pointed the gun at her. At this point, defendant commandeered Davis' car and left the gas station. Ms. Nelson and three others followed in the other car. While pursuing defendant, Ms. Nelson called 911 to report the situation.

There ensued a high speed chase which ultimately involved a Chatham patrol officer, Patrolman Gahart. Gahart activated his overhead lights in an attempt to signal defendant to stop, but without effect. Ultimately, the car being driven by defendant crashed and began burning. Defendant exited the car, was chased by Patrolman Gahart on foot and was apprehended by him. A search of the area traversed by defendant revealed a seven-shot Harrington and Richardson twenty-two caliber revolver, which was photographed in situ and, apparently, thereafter, in all dimensions.

On April 30, 2002, defendant pled guilty to an accusation involving the charges contained in the indictment and was scheduled to be sentenced on June 21, 2002. On the sentencing date, however, he moved, successfully, to withdraw his guilty plea. The police, without knowledge of the events of June 21, 2002, and believing that defendant had pled guilty so that evidence was no longer necessary, destroyed the gun on July 12, 2002.

Jury selection began on March 3, 2004. Immediately before that selection, the court was advised of the destruction of the gun. The trial judge reviewed the facts and asked defense counsel whether, assuming the destruction was not motivated by bad faith, there would be an objection to the use of photographs. Counsel responded that there would be no objection.

Immediately after the jury selection concluded on March 3, 2004, the judge explained to the jury that he was going to dismiss them until the following Monday, March 8, 2004. He advised them not to discuss the case with anyone and then instructed the jury

"if there is any indication that this case is proceeding in the media, whether it be in the print, on TV, on the local TVs, or on the radio, you have to disregard that. You can't read it, you can't look at it, you can't listen to it. I do not suspect that there will be anything because there is no one here to report, but I am giving you this cautionary instruction that you cannot. O.K.?"

The jury returned on March 8, 2004, and the judge reiterated his instruction:

O.K.? By the same token, if there is any media coverage, whether it's newspaper, the print media, whether it's one of the local TVs, or it's even on local radio, you can't read it, you can't look at it, you can't listen to it. And I am directing you not to.

That warning was repeated at the conclusion of the trial day: "Once again, if there is any media coverage, you cannot read it, listen to it, or look at it."

The jury was excused until the following Wednesday, March 10, 2004. On Tuesday, March 9, 2004, a local newspaper published a story reporting that four members of the Bloods, a street gang, attended a Morris County Courthouse Trial. The second paragraph of the article identified the defendant in the trial as Eric Bulla. The third paragraph identified defendant as having "bragged of being a high-ranking Blood member in Union County ...." The article went on to indicate a fear on the part of the "authorities" that there was an attempt to intimidate the jury. The balance of the article described the testimony anticipated during the trial.

When the attorneys called the article to the attention of the judge, he determined to repeat his warning concerning media coverage. Defense counsel requested that the instruction be repeated and expressed a preference that "there ... [be] some inquiry -- specific inquiry as to whether anyone viewed anything in the newspapers yesterday." When the jury was brought in to begin the trial day, the judge addressed them:

Also, don't read any media accounts if there's coverage in the media or listen to it if there's anything on the radio. And if there was to be something on a local T.V. of course you would see that because you would see somebody in here doing something with that.

My all-purpose person, as you can see, just went and got that -- which was in the jury room when you were in there. So we brought it out. If you read anything about this case or you listen to anything about the case, you have to report that to me. Do you understand? Because it would affect what I may or may not do, but I'm sure you all have listened to what I've said and I'm hoping that you'll all obey my direction.

There was no objection voiced to the procedure utilized by the judge to determine if the article had been seen and there was no indication from the panel, at any time, that it had been seen by any member of the jury. As we have indicated, the defendant was convicted of substantially all counts. On appeal, he argues:

POINT I

THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY BY FAILING, UPON COUNSEL'S REQUEST, TO QUESTION JURORS CONCERNING THEIR POSSIBLE EXPOSURE TO HIGHLY PREJUDICIAL NEWS REPORTS. U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. I, par. 10.

POINT II

THE TRIAL COURT ERRED IN FAILING TO DISMISS GUN-RELATED CHARGES FOLLOWING THE STATE'S DESTRUCTION OF THE GUN SEIZED IN THE INCIDENT (Not Raised Below). U.S. Const., Amend. XIV; N.J. Const. (1947), Art I, par. 10.

Defendant asserts, correctly, that the court was obligated to determine if the article had the potential to prejudice defendant. See State v. Bey, 112 N.J. 45, 84 (1988). The initial step is to determine if the jury was exposed to the publicity since there can be no prejudice in the absence of exposure. There is, however, no prescribed mechanism for making this determination. Clearly, an inquiry must be made of the jury, but "... [t]he form and content of this initial questioning is better left within the individual court's sound discretion." Id. at 86, n.26.

In the absence of any specific request for an individualized voir dire, we review the judge's decision as to the manner of inquiry under the plain error standard. Accordingly, we must ascertain whether the manner in which the judge determined if the jury had been exposed to the article "was clearly capable of producing an unjust result . . . ." R. 2:10-2; State v. Macon, 57 N.J. 325, 338 (1971) (plain error must raise "a reasonable doubt as to whether the error led the jury to a result it might not otherwise have reached.").

Here, the judge instructed the jurors to report to him if they had seen the article when he told them "If you read anything about this case or you listen to anything about the case, you have to report that to me. Do you understand?" He had previously instructed the jury, in another context, of the methods available to report an impropriety. He had told the jurors that, if they were approached by someone concerning the case, they were required to report it to the judge and he advised them

there are a number of ways you can report it. You can report it directly to me. You can report it to the sheriff's officers that you see in the courtroom and they will relate it to me. You can report it to my clerk who is the young lady to my right. O.K.?"

Under these circumstances, the judge's March 10 comments were sufficient.

Despite his instructions to report if a juror had read anything connected to the trial and his instructions as to how that report might be made, there was no response from the jurors and no suggestion from defendant that the procedure employed by the judge should have been modified. The failure to object, of course, suggests that, in context, the procedure was not prejudicial. State v. Macon, supra, 57 N.J. at 333. The manner of conducting the inquiry was well within the judge's discretion and his decision to conduct the inquiry as he did certainly did not constitute error, let alone plain error.

Defendant also argues that the gun-related charges should have been dismissed because the gun had been destroyed. New Jersey recognizes that the destruction of evidence may result in a due process violation. State v. Washington, 165 N.J. Super. 149, 155 (App. Div. 1979). The existence of such a violation is determined by analyzing whether the destruction was motivated by bad faith, whether the evidence was material to the defense, and whether the defendant was prejudiced. State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certif. denied, 152 N.J. 10 (1997).

Defendant concedes that there is no suggestion of bad faith, but contends that New Jersey should abandon that requirement. We decline to address the issue because it appears evident to us that the failure to produce the gun was not sufficiently material to the defense to warrant a reversal and the State's failure to produce it resulted in no prejudice to defendant.

Defendant argues that his inability to examine the gun prejudiced his defense because he was unable to determine if the gun bore his fingerprints and because he was unable to use the gun to exploit the different descriptions of it given by the various witnesses. We are not persuaded by either argument. Defendant did not learn of the destruction of the gun until March 1, 2004, and no attempt had been made to examine it prior to trial. Indeed, there was never a suggestion that the defense intended, at any time, to examine the weapon for fingerprints. Moreover, the argument certainly could have been made that the jury should infer that defendant had not handled the gun because the State produced no proof of defendant's fingerprints on it.

Any claim of prejudice relating to the physical properties of the gun was mooted by the introduction of photographs. Those photographs fully depicted the gun; were available to the jury; and provided a basis, equivalent to any that might have been provided by the actual gun, for any argument defendant might wish to raise.

Finally, defendant raises various arguments respecting the sentences imposed. With two exceptions, we find those arguments without merit, although we deal with each briefly.

Defendant argues that his sentence of twenty-two years on the carjacking conviction was both excessive and, because it exceeded the mid-point of the statutory sentencing range, constitutionally infirm. As to the first claim, we note the sentencing judge applied correct legal principles to reach a sentencing decision on articulated findings that were supported by the record before him, including defendant's criminal history and the nature of the crime. Each of these factors fully justified the term imposed. The final sentence was anything but shocking to the judicial conscience, and we have no reason to disturb it. State v. Roth, 95 N.J. 334, 363-64 (1984).

As to the second, defendant concedes the statute criminalizing carjacking, N.J.S.A. 2C:15-2, permits a custodial sentence of between ten and thirty years and contains no presumptive term. Any sentence falling within those boundaries is free of constitutional defects. See State v. Abdullah, 184 N.J. 497, 507-08 (2005).

Defendant also objects to the imposition of consecutive sentences. Three such sentences were imposed, although defendant objects only to the sentence on the eluding conviction made consecutive to the carjacking sentence, and the sentence on one charge of aggravated assault made consecutive to the concurrent sentences imposed on the other aggravated assault charges.

The philosophy behind our jurisprudence of consecutive sentencing is to ensure that "there can be no free crimes in a system for which the punishment shall fit the crime . . . ." State v. Yarbough, 100 N.J. 627, 643 (1985). As the Court explained further, in determining if the charges constitute separate offenses for which consecutive sentences are appropriate,

some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
 
(a) the crimes and their objectives were predominantly independent of each other;
 
(b) the crimes involved separate acts of violence or threats of violence;
 
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
 
(d) any of the crimes involved multiple victims;
 
(e) the convictions for which the sentences are to be imposed are numerous;

[Id. at 644.]

When he considered the sentence for eluding, the judge analyzed these factors and we cannot fault his analysis. Each of the crimes was committed against different persons and had different objectives; they involved separate acts of violence; and were, in a practical sense, committed at sufficiently distinct times to allow a conclusion that they did not represent one continuing period of aberrant behavior. The imposition of this consecutive sentence assures that there be "no free crime."

The propriety of the sentence imposed on one of the three aggravated assaults is a much closer question. As we have indicated, the convictions for aggravated assault involved three victims. Mr. Davis and Mr. Moyd were the initial victims, and Ms. Aquino was assaulted immediately thereafter when she exited her car to intervene in the dispute. The judge did not provide a detailed State v. Yarbough analysis, noting only that:

But as to Emmabell Aquino who testified in here who had an opportunity to view who related to me the fear that I understand one would experience under the circumstances, I'm going to run that sentence, Count 12, consecutive to Counts 2 and 13, but I'll run it concurrent as to the other counts except for the financial.

Because, as we will explain, the sentences imposed on all three convictions of aggravated assault must be vacated and remanded for new sentencing, we believe it appropriate to allow the sentencing judge to reconsider whether to impose consecutive or concurrent sentences when he reconsiders the length of the sentence. Whatever decision is reached, must, of course, be explained and grounded in the evidence.

The final argument made by defendant relates to the length of the sentence imposed on the charge of eluding, a second-degree crime, and the three charges of aggravated assault, each of which was a crime of the fourth degree. At the time of sentencing, second-degree crimes were punishable by a term of between five and ten years, with a presumptive term of seven years. Fourth-degree crimes were punishable by a term of not more than eighteen months, with a presumptive term of nine months. See State v. Natale, 184 N.J. 458, 483 (2005). The presumptive terms were eliminated by Natale to cure a constitutional defect in the sentencing system. Ibid. at 487.

Natale also determined that ". . . a sentence higher than the presumptive term based on judicial findings other than a prior criminal conviction . . . does not comply with the Sixth Amendment." Ibid. at 489-90.

Since defendant received an eight-year sentence on the eluding charge and a fifteen-month sentence on each of the aggravated assault charges, his sentences exceeded the presumptive terms for the offenses. The judge's statement of reasons identified the factors on which his sentencing decision was based: "Aggravating factors 3 (risk of reoffense), 6 (prior criminal history) and 9 (deterrence) apply. There are no mitigating factors." The State concedes that a new sentence is necessary for the eluding conviction and that concession necessarily applies to each of the aggravated assault charges. Those new sentences must be imposed under the principles announced in State v. Natale, 184 N.J. 458 (2005), State v. Abdullah, 184 N.J. 497 (2005), State v. Franklin, 184 N.J. 516 (2005). Given the State's concession, we have no need to consider whether the aggravating factors identified by the sentencing judge are all included within the meaning of the term "prior criminal conviction." State v. Abdullah, 184 N.J. 497, 506 n.2 (2005).

Affirmed in part, reversed in part and remanded for resentencing on the eluding and aggravated assault convictions.

 

The reference by the judge to bringing something out from the jury room appears to be a reference to the newspaper containing the article.

There is no objection to the consecutive sentence imposed on the "certain persons" conviction. That sentence, apparently, resulted from a negotiated plea bargain.

(continued)

(continued)

17

A-1224-04T4

December 19, 2005