STATE OF NEW JERSEY v. JASON J. HARRELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1090-04T31090-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON J. HARRELL,

Defendant-Appellant.

_________________________________

 

Argued October 5, 2006 - Decided November 2, 2006

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

I-03-12-01552.

Robert Carter Pierce argued the cause for appellant

(Paul W. Bergrin, attorney; Mr. Pierce, of counsel

and Donald T. Thelander on the brief).

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of

counsel and on the brief).

PER CURIAM

Defendant Jason Harrell was charged under an indictment with murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2), and second-degree possession of a weapon with the purpose to use it unlawfully, N.J.S.A. 2C:39-4a. Tried by a jury, defendant was convicted of the lesser-included offense of aggravated manslaughter, N.J.S.A. 2C:11-4a, and of the weapons charge. For sentencing purposes, the judge merged the weapons conviction with the aggravated manslaughter conviction, imposing for that crime a thirty-year term subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were also imposed. Defendant appeals. We affirm the conviction, but remand for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005).

This criminal episode arose out of a confrontation between a group of young Hispanic males and a group of young black males during the early morning hours of August 24, 2003, on the corner of Welton and Hassert Streets in New Brunswick. According to the State's proofs, at around 8:00 p.m. the evening before, Brian Weeks, defendant's longtime friend, had been involved in an altercation with an Hispanic male, Mario Carpio. Shortly afterwards, Weeks went to retrieve a gun he had earlier stashed away at a George Street home where he and defendant had been attending a barbecue. Weeks then went to 30 Welton Street, the home of his son's mother, and asked another friend, Tryshon Stokes, to hold the gun for him.

Sometime later, at around 2:00 or 3:00 a.m., Carpio and Weeks met again on Welton Street, this time amidst a crowd of about ten or fifteen Hispanic males and a group of black males standing across the street. Weeks and Carpio began arguing while a number of Hispanic men were in the middle of the street "swinging weapons and all that there stuff." They surrounded Weeks but there was no physical fighting between the two groups and Weeks was not injured in any way. The Hispanic males simply would not let Weeks leave.

By then, defendant had pulled up to the scene in a truck and observed the crowd encircling Weeks. When defendant approached an Hispanic male holding num chucks but "backing up" from him, Weeks told defendant to get the gun from Stokes. Defendant complied, left the scene and went to 30 Welton Street to retrieve the gun "to make everyone get away from the area and that was it". Stokes, in turn, was only too willing to relinquish the gun simply to "to get [it] out of the house."

Defendant returned to the nearby scene with gun in hand. He exited the truck, brandished the gun, and fired six to eight shots in Weeks' direction. One of the bullets struck Juan Gomez, an innocent bystander, in the chest, killing him. After the shooting, defendant discarded the gun and fled in his truck. Another of defendant's friends at the scene, Malik Stokes, took the gun to 30 Welton Street, where Weeks wrapped it in a handkerchief and threw it into the backyard of 32 Welton Street where it was discovered by police. The next morning, defendant telephoned Weeks and arranged to meet in Asbury Park where the two boarded a bus to North Carolina later that day. They were arrested four days later. Meanwhile, at the scene of the shooting, four shell casings were located on Welton Street and one shell casing was stuck in the gun. Two bullets had struck a red Toyota parked on Welton Street and one bullet was recovered from the decedent during the autopsy.

Defendant offered a somewhat different version of the events at trial. Believing Weeks to be in danger from the encircling crowd, defendant "grabbed the gun from" Tryshon Stokes "to make everybody get away from the area . . . ." According to defendant, the Hispanic youth with the num chucks:

was right here in the middle of the street. He's coming towards me. He didn't swing but he had --- he had the num chucks in fact but he just didn't swing. He was just looking at me and that's it. There were several other people surrounding the person with the num chucks . . . I mean they wouldn't let him [Weeks] go anywhere.

Defendant fired the first two shots in the air and then fired two more shots towards the area where the crowd was surrounding Weeks, but "fired downwards towards the car." Thereafter, Weeks broke free of the crowd and grabbed defendant's arm, which caused defendant to change direction and fire twice more into another street. Defendant, however, insisted that he:

didn't try to shoot anybody. I didn't try to kill anybody. What happened to Juan was an accident. I didn't try to shoot anybody. I didn't even aim the gun specifically at no person whatsoever. Everything, anything that happened to Juan, I swear, I'm sorry, it was an accident. I did not try to shoot him. He was all the way down the street. There was no way that I intended to shoot this guy.

Evidently crediting the State's account, the jury convicted defendant of aggravated manslaughter and possession of a weapon for an unlawful purpose.

In challenging the judgment of conviction, defendant raises the following issues on appeal:

I. THE TRIAL COURT'S FAILURE TO CHARGE SELF-DEFENSE CONSTITUTES A DENIAL OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL AND REQUIRES REVERSAL OF THE DEFENDANT'S CONVICTION. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Partially Raised Below)

II. THE DEFENDANT'S SENTENCE OF 30 YEARS FOR AGGRAVATED MANSLAUGHTER, WHICH WAS 10 YEARS BEYOND THE PRESUMPTIVE TERM, IS UNCONSTITUTIONAKL AS IT IS IN VIOLATION OF THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO TRIAL BY JURY, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

III. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

IV. PROSECUTORIAL COMMENT SUGGESTING THAT MR. HARRELL TAILORED HIS TESTIMONY TO THE STATE'S EVIDENCE VIOLATED MR. HARRELL'S CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL, TO CONFRONT WITNESSES, TO PRESENT WITNESSES AND EVIDENCE IN HIS DEFENSE, AND TO A FAIR TRIAL. (Not Raised Below)

We now proceed to address these issues.

(i)

We deal first with defendant's contentions, raised for the first time on appeal, that the trial judge committed reversible error by failing to instruct on self-defense. We disagree. Defendant never requested such an instruction, Rule 1:7-2, nor was one warranted by the record evidence. See State v. Crisantos, 102 N.J. 265, 278 (1986).

Before defendant testified, counsel and the court had agreed that defendant intended to interpose the defense of defense of others.

The Court: -- but, as I understand the defense position in this case, at least I thought I understood the defense position, the defendant to the extent that he fired any shots was firing them in defense of Brian Weeks and that he was in some distance from these -- this crowd of Hispanic males, and therefore, I did not understand that he was employing a self-defense claim as much as he was employing a claim of use of force for the protection of another. Am I correct about that?

[Defense Counsel]: Judge, yes.

Even after defendant testified, all discussion between counsel and the court concerned the defense of defense of others, and not the defense of self-defense. At the final charge conference, the judge determined to charge only the "defense of others" defense and counsel voiced no objection. Ultimately, the court charged as indicated, and once again counsel lodged no objection.

Nevertheless, defendant now contends the failure of the court to sua sponte charge self-defense was plain error under Rule 2:10-2. To be sure, the failure of the court, whether or not requested, to instruct fully, clearly and accurately as to the fundamental and essential issues before the jury may be reversible error. See State v. Green, 86 N.J. 281 (1981). Here, however, we are satisfied that there was no error, much less plain error, because the defense of self-defense was not reasonably suggested by the evidence.

"When deadly force is used, whether or not a self-defense jury instruction is required depends on whether the legal requirements have been satisfied and whether the evidentiary record supports such a charge." State v. Moore, 158 N.J. 292, 308 (1999) (citing N.J.S.A. 2C:3-4b). In this regard, the self-defense doctrine exonerates a person from criminal liability for using deadly force where the person had a reasonable belief that such force was immediately necessary for self-protection against death or serious bodily harm. See State v. Moore, supra, 158 N.J. at 308-09; State v. Bryant, 288 N.J. Super. 27, 34 (App. Div.), certif. denied, 144 N.J. 589 (1996); N.J.S.A. 2C:3-4a. There are, however, well-recognized limitations specifically on the use of deadly force by the actor. Thus, N.J.S.A. 2C:3-4b(2) provides in relevant part:

The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:

(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating . . .

[N.J.S.A. 2C:3-4b(2)(a) and (b).]

As a general proposition, a person may not use more force than that which he reasonably believes is necessary to repel the attack. See State v. Bryant, supra, 288 N.J. Super. at 36-37; see also State v. Villanueva, 373 N.J. Super. 588, 596-601 (App. Div. 2004); State v. Simms, 369 N.J. Super. 466, 472 (App. Div. 2004). Consequently, the actor may resort to the use of deadly force - that which he knows to create a substantial risk of death or serious bodily harm - only if he "reasonably believes

. . . such force is necessary to protect h[im]self against death or serious bodily harm." N.J.S.A. 2C:3-4b(2). Otherwise, he may only resort to non-deadly force. State v. Bryant, supra, 288 N.J. Super. at 37. In other words, deadly force is not necessary if lesser force will repel the attack. Ibid. And even in that event, the amount and degree of force need be proportionate to what the actor reasonably judges necessary. Cannel, New Jersey Criminal Code Annotated, comment 9 on N.J.S.A. 2C:3-4 (2005).

Paragraph b(2)(a) of N.J.S.A. 2C:3-4 creates another limitation on the use of deadly force in that an actor who, "with [a] purpose of causing death or serious bodily harm provoke[s]" the attack to which he then responds may not respond with deadly force and call it self-defense. N.J.S.A. 2C:3-4b(2)(a) (emphasis added); see also Cannel, supra, comment 11. Stated somewhat differently, deadly force may not be used where a defendant, with the intent to "caus[e] death or serious bodily harm . . . provoked . . . the use of force against himself in the same encounter." State v. Bryant, supra, 288 N.J. Super. at 37. In State v. Moore, supra, 158 N.J. at 311-12, the Court found that deadly force was in fact used and that defendant had initiated the confrontation at issue by yelling something along the lines of "what are you looking at?" and then brandishing a gun. This action could be seen as a deliberate attempt to start a fight in which someone would be killed or seriously injured. Therefore, the Court determined that the defendant was an aggressor barred from the defense. Ibid.

Finally paragraph b(2)(b) creates yet another limitation in that the use of deadly force is not justifiable if "[t]he actor knows that he can avoid the necessity of using such force with complete safety by retreating." N.J.S.A. 2C:3-4b(2)(b).

We are satisfied that in rejecting the defense of self-defense in this case, the trial court was properly governed by these guiding principles and that there was no rational basis in the evidence to support such a charge. On this score, the entire thrust of the defense was that defendant believed his friend Weeks was endangered. Before he even appeared at the scene, defendant knew Weeks had been previously stabbed. When he first arrived on the scene, defendant observed the events for about five minutes without taking any action. Indeed, the Hispanic youth with num chucks "started backing up. The guy that had the num chucks just started backing up, so that is the direction I went[;] towards this guy backing up until Brian Weeks told me to get the gun from Tryshon." Defendant then actually left the scene only to return shortly thereafter armed with a gun. And even then, his intention, by his own admission, was only to "try[] to help my friend who had people around him, who had knives with them." Consequently, according to defendant, he stood beyond the group and fired shots into the air commanding the crowd to disperse. He then fired more shots downwards. As defense counsel explained in summation, "And [defendant] did what he thought was right, what was reasonable to get his friend out of that location without causing any deadly injury."

Significant for present purposes, throughout the entire encounter, there was no physical altercation, just verbal jousting. Indisputably, defendant was neither victimized nor realistically ever under attack. Nor did he testify he himself felt endangered. Indeed, even the youth with the num chucks, as he approached, "[he] just wouldn't swing [them]. He was just looking at me and that's it."

In our view, there is no rational basis in the evidence to suggest, much less establish, that defendant reasonably believed deadly force was necessary to protect himself against death or serious bodily harm. On the contrary, the evidence wholly admits of the conclusion that armed with a gun, defendant provoked any threatened use of force against himself in the same encounter; and further, that he could have avoided the necessity for using deadly force by retreating with complete safety. Simply put, the evidence does not satisfy the elements of the "self-defense" defense under N.J.S.A. 2C:3-4 and the trial judge properly rejected its application in this case. As noted, jury instructions must be supported by the evidence in the record. State v. Christener, 71 N.J. 55, 69 (1976). "[T]he giving of an instruction that correctly states the law, but is inapplicable to the facts or issues before the court is error

. . . ." State v. Thomas, 76 N.J. 344, 365 (1978). Here, there was no error, much less reversible error, in declining to give a self-defense jury instruction.

(ii)

Defendant next contends, again for the first time on appeal, that the prosecutor's suggestion in summation that defendant tailored his testimony violated his Sixth Amendment right to be present at trial, to present evidence in his defense, to testify himself and to confront witnesses against him. Specifically, defendant challenges the following comments of the prosecutor:

Now, the Judge is going to explain to you I believe that one of the things you can consider when you're considering subjecting the credibility of a witness is the witness's interest in the outcome of the case. Who has a greater interest in the outcome of this case than Jason Harrell? Consider also that he had the opportunity to observe and listen to the testimony of all of the State's witnesses. And when he got on the stand I suggest to you that he tailored his testimony to conform to his version of what happened.

The prosecutor then went on to specifically identify the evidence supporting the accusation and to describe in detail how defendant explained away the number and direction of shots fired, after hearing the State's witnesses testify.

Because no objection was voiced below, we review any alleged error under the plain error standard of review. See State v. Macon, 57 N.J. 325, 333 (1971). Under that standard, we disregard an error unless it is "clearly capable of producing an unjust result." R. 2:10-2. In other words, the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. Under this standard of review, we are satisfied there was no plain error.

Although the United States Supreme Court held that prosecutorial accusations of tailoring are permissible under the Federal Constitution, Portuondo v. Agard, 529 U.S. 61, 65, 120 S. Ct. 1119, 1123, 146 L. Ed. 2d 47, 54 (2000), our Court nonetheless found that "they undermine the core principle of our criminal justice system - that a defendant is entitled to a fair trial." State v. Daniels, 182 N.J. 80, 98 (2004). Therefore, pursuant to its supervisory authority over "sound trial practice," and based neither on the Federal nor State Constitution, the Court held that "prosecutors are prohibited from making generic accusations of tailoring during summation." Id. at 97-98.

Daniels, however, did not establish a per se rule against comments on a defendant's opportunity to fabricate. Rather, the Court distinguished between generic accusations, which have no specific evidentiary basis and are therefore prohibited, and specific accusations when there is evidence in the record to support an inference of tailoring and upon which a prosecutor may comment "in a limited fashion." Id. at 98-99. Here, although the prosecutor's comment was improper in light of Daniels, it was nevertheless based on the evidence in the record and the reasonable inferences to be drawn therefrom. State v. Daniels, supra, 182 N.J. at 99 (citing State v. Rose, 112 N.J. 454, 522 (1988)). That evidence, in our view, reasonably supports an inference of tailoring.

Prosecution witnesses placed defendant at the scene twice, returning after having retrieved a gun and firing six to eight shots in Weeks direction. In fact, five shell casings were recovered as well as two bullets, one from the decedent and another from a nearby parked car. Defendant fired these shots, according to the State's proofs, even though no one in the crowd was fighting and Weeks remained uninjured. Defendant's testimony matched closely that of the preceding State's witnesses. He explained his concern over his friend's safety upon first arriving on the scene and later securing a gun simply "to make everybody get away from the area." The State's witnesses having consistently testified to hearing six to eight shots fired, defendant also explained the first two were fired in the air, and then the next, just as innocently, downwards toward the car where a bullet had in fact been retrieved by police. Finally, in order to justify the last two shots, defendant further explained that by then Weeks had managed to break free and grabbed defendant's arm, causing him to accidentally discharge the weapon in another direction.

Thus, there was a symmetry between the prosecution and defense evidence as to certain facts that obviously defendant "[could] not get past". However, defendant's version decidedly changed course in a way that supported his defense of defense of others and accidental shooting or misadventure. Defendant's testimony therefore acknowledged his presence at the scene and his firing of the gun while at the same time advancing his contention that both were impelled by his reasonable belief that Weeks' life was endangered by the threatening crowd. Consequently, it was entirely reasonable to suggest that "defendant's version conformed with that of other witnesses when convenient for him but diverged where defendant found divergence advantageous." State v. Daniels, supra, 182 N.J. at 101.

Of course, the prosecutor further explicitly referenced the fact that defendant was in the courtroom, that he heard the testimony of other witnesses, and was thus able to tailor his testimony. As the Court in Daniels held, this is prohibited commentary. Id. at 99. However, even though the prosecutor's remark here was improper, we do not find it, under the circumstances, "so egregious that [it] deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In the first place, the prosecutor did not act in bad faith. Daniels was decided six months after the trial of this matter and at the time of summation, the United States Supreme Court in Portuondo, supra, held that the Federal Constitution does not proscribe prosecutorial commentary concerning a testifying defendant's opportunity to tailor his testimony to that of other witnesses. Of course, in the future, as the Daniels Court noted, "we expect that prosecutors will act in good faith." State v. Daniels, supra, 182 N.J. at 99. Secondly, there was no objection to the prosecutor's remarks, challenged for the first time on appeal. Third, there was a specific evidentiary basis that supported the allegation of tailoring. And fourth, in light of the overwhelming evidence of defendant's guilt of aggravated manslaughter, we do not regard the error as capable of leading the jury to a result it otherwise might not have reached. State v. Macon, supra, 57 N.J. at 336.

(iii)

Lastly, defendant contends that the thirty-year term is excessive and unconstitutional. We conclude a remand is required to reconsider the thirty-year term in light of Natale.

In Natale, the Court stated that, under our Code of Criminal Justice, "before any judicial fact finding, the maximum sentence that can be imposed on a jury verdict or guilty plea is the presumptive term," and therefore "the 'statutory maximum' for Blakely [v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159

L. Ed.2d 851 (2004)] and [United States v.] Booker[, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)] purposes is the presumptive sentence." State v. Natale, supra, 184 N.J. at 484. Accordingly, the Court therefore "eliminat[ed] the presumptive terms" creating "the 'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea [as] the top of the sentencing range for the crime charged

. . . ." Id. at 487.

The holding in Natale is entitled to "[p]ipeline retroactivity" and thus applicable to defendants who had cases on direct appeal at the time of the decision. Id. at 494. "[A] new sentencing hearing [is to be held] in each affected case based on the record at the prior sentencing." Id. at 495. At the hearing

the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Id. at 495-96.]

Here, after finding aggravating factors (3), (6) and (9), N.J.S.A. 2C:44-1a(3),(6) and (9), and no mitigating factors, the trial court imposed a thirty-year term on defendant's aggravated manslaughter conviction, with an 85% parole disqualifier. The sentence clearly exceeds the former twenty-year presumptive term for this offense under N.J.S.A. 2C:44-1f(1)(a). Because it appears that the judge's fact findings were not based exclusively on defendant's prior conviction, the matter does not fall within "the recidivism exception" recognized by the Court in State v. Abdullah, 184 N.J. 497, 506 n2 (2005). See State v. Thomas, 188 N.J. 139, 153-54 (2006); State v. Pierce, 188 N.J. 155 (2006). Therefore, we are constrained to remand for reconsideration of the sentence on the aggravated manslaughter conviction.

 
The matter is remanded for reconsideration of sentence. In all other respects, the judgment of conviction is affirmed.

The indictment contained five more counts, two of which named Brian Weeks, two of which named Malik Stokes, and one which named Tryshon Stokes. Only defendant was charged with murder.

(continued)

(continued)

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A-1090-04T3

November 2, 2006