STATE OF NEW JERSEY v. CLARENCE E. SCOTT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1732-03T41732-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLARENCE E. SCOTT,

Defendant-Appellant.

_____________________________

 

Submitted January 10, 2006 - Decided February 2, 2006

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-05-0493.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Clarence E. Scott, appeals from his conviction, following a jury trial, on charges of murdering Ronald Wimbush, committing robbery on Joseph Robinson, the attempted murder of Police Officer Salvatore Giuliana, resisting arrest, and related weapons offenses. He also appeals from his sentence of life in prison with thirty-five years of parole ineligibility for the murder, to run consecutive to a sentence he was currently serving on an earlier conviction, twenty years for the robbery conviction, to run consecutive to the murder sentence, and another consecutive sentence of twenty years for the attempted murder of Officer Giuliana.

I

This was the most pertinent trial testimony. The murder occurred in the Christopher Columbus Housing Projects (CCP) in Paterson, on January 27, 1998, at approximately 11:30 p.m. Joseph Robinson testified that he and Alphonso Lee were leaving Building One at CCP when they encountered an armed man just outside the door. Robinson described the man as wearing a black jacket made of leather or goose down, a dark hat, and a dark-colored scarf wrapped around his head. Robinson could not see the man's face because it was covered by the scarf. He recalled that the gun, which he saw at close quarters, looked like a .9 millimeter pistol. Because Robinson assumed that the gunman intended to rob them, he handed over his money, knelt down on the floor, and looked down rather than up at the gunman. From that vantage point, he saw the gunman's boots, which he described as black with yellow trim. Nine days after the robbery, Robinson gave a statement to the police and identified a photograph of the boots that defendant was wearing when arrested as being the boots the gunman was wearing.

At trial Robinson testified that the gunman remarked that he knew Robinson and handed him back his money. Robinson also testified that he was acquainted with the defendant, although the gunman had a raspy voice that did not sound like defendant's voice. As the gunman walked away, Robinson observed that he walked with a limp.

Robinson, and several other witnesses, testified that as the gunman walked away from Building One, a group of people standing near Building Two, which was across the courtyard, began shouting taunts at him, calling him a "fag" and threatening that "we'll F you up" if he approached them. Shortly thereafter, Robinson heard a shot and saw the gunman walking away from the Projects toward nearby Matlock Street.

Raysun Belton, who was standing near Building Two with Ronald Wimbush, testified that his friend, "Jayvon," had walked over to Building One and returned within seconds exclaiming that there was a "stickup" going on and that the gunman had two people down on the floor. After the gunman emerged from Building One, Belton heard someone behind him shout to the gunman "don't come down here . . . we'll fuck you up." Upon seeing the gunman reach down, Belton began to run away, believing that he was reaching for a gun. Belton then heard a gunshot, and saw Ronald Wimbush, staggering and holding his neck. Belton confirmed that the gunman was dressed in dark clothing and walked with a limp. Belton ran to find a policeman to report the shooting. He reported to the officer that the gunman was wearing black clothing and had a "funny walk" as though something was wrong with his foot or leg. At trial, Belton demonstrated the gunman's distinctive walk to the jury. It was described for the record as "[s]o you are indicating your feet spread apart and your shoulders bobbing back and forth, going up and down."

Kelwanna Curry testified that she was standing in front of Building Two when she saw a person with a gun coming toward her. From fifteen feet way, she observed that the gunman was wearing a dark hat, a black scarf wrapped around his face and a black jacket. She testified that Ronald Wimbush, also known as "Issa," was standing near her. She saw the gunman come up to Wimbush, who said "I didn't say anything." She saw the gunman grab Wimbush. Then she turned and ran into Building Two. As she was running away, she heard a shot.

Officer Frank Ferrigno testified that he was on patrol on the night of the shooting when he received a broadcast from headquarters concerning a shooting at CCP and a description of a suspect who was wearing blue jeans, a black jacket, and a red and black scarf, and was limping. The suspect was reported as heading toward School 28. On Jefferson Street, he spotted a black man wearing clothing that fit the broadcast description. Ferrigno described the man as wearing a black jacket but having it partially off his right shoulder as though he were trying to take it off. When Ferrigno ordered the man to stop, he began running away. At that point, Ferrigno noticed that the man had a limp. Ferrigno and his partner, Officer Salvatore Giuliana, gave chase, and were able to apprehend the man as he was attempting to climb over a fence at the end of an alley.

The individual, later identified as Clarence Scott, violently resisted arrest. Ferrigno described him as fighting, swinging, punching, kicking and biting in his attempt to get away. Ferrigno testified that at one point during the struggle to handcuff him, Scott reached into the pocket of the black leather jacket. Believing he might be reaching for a gun, Ferrigno also placed his own hand into the jacket pocket, where he felt the gun. He testified that Giuliana was at the suspect's feet, and that during the struggle, the suspect was pointing the gun at Giuliana, through the jacket pocket. Ferrigno was able to get the gun away from the suspect, and he and his partner handcuffed him. He testified that Scott was upset and aggressive, cursing the officers and stating "F, you cops, you should have killed me, should have shot me." When brought to the police station, defendant further threatened "to kill all you officers, you mother fuckers, I'll get you." Ferrigno's testimony was corroborated by Detective Vogt, who testified that he was on duty at the police station when Scott was brought in and that Scott threatened to "kill all us fucking cops."

When apprehended in the alley near Jefferson Street, defendant was wearing a black leather jacket and a dark wool scarf. During a search of the area, conducted later that night, police found a black wool hat on Jefferson Street.

Derrick Wright, a nurse at the Passaic County Jail where defendant was held pending trial, testified that he has seen defendant walk many times and, while he does not walk with a limp, he walks with a "swagger." Like Belton, Wright demonstrated the walk to the jury. Counsel and the court described the walk for the record as follows: "[I]t appeared that Mr. Wright walks in a way in which he appeared to . . . at the end of each . . . step dipped his right shoulder. . . . The upper torso shifted from side to side and one leg drops." Wright also testified that he observed defendant taking a shower in order to document any injuries he might have when he was brought into the jail. He saw no bruises or other injuries, and defendant did not complain of any injuries.

Officer Sean Reed testified that he responded to a report of a shooting. At the murder scene, in front of Building Two, he found a shell casing from a bullet. The State presented expert ballistics testimony confirming that the shell had been fired from the gun found in defendant's black leather jacket. The State also presented testimony that when defendant was apprehended, the gun, a .9 millimeter pistol, had a bullet jammed in the chamber. The magazine, which had a capacity of eight bullets, contained two ordinary bullets and two Hollowpoint bullets.

The State also presented testimony from Raymond Simmons concerning an alleged confession that defendant made to him while they were both housed in the Passaic County Jail. According to Simmons, defendant told him that he was "out to make some money . . . at the CCP projects and he went to stick this guy up and . . . he shot him." Simmons testified that defendant told him he shot "Issa-Char" (Wimbush), because "he refused to give him his money or whatever he had to give him and that's when he shot him." He also testified that defendant told him that he did not intend to let the police arrest him "but the gun was jammed."

At the time of the alleged confession, Simmons was in jail on burglary charges. After he pled guilty but before he was sentenced, he wrote a letter to the Prosecutor's Office offering to provide information about the murder. But at defendant's trial Simmons denied that he was motivated by any desire to obtain a lighter sentence. According to Simmons, Wimbush was a friend of his and he was offering information to the Prosecutor from purely altruistic motives, to help Wimbush's family. In his summation, even the State's attorney conceded that this testimony was not credible. Further, Simmons admitted that he and another trial witness, Wilfredo Izquierdo, were co-defendants in the burglary case, and that he and Izquierdo had been co-defendants several times in the past on charges of burglary, stolen cars and robbery.

The defense called Izquierdo as a witness to rebut Simmons' testimony. Izquierdo testified that he, Simmons, and defendant, were all incarcerated at the Passaic County Jail at the same time. But he testified that the three of them were assigned to different sections of a large dormitory, and, to his knowledge, defendant and Simmons had no relationship with each other. He testified, however, that Simmons told him that he was going to offer the Prosecutor information about defendant in order to try to "get his time back," that is, to get a reduction in his sentence. Izquierdo testified that Simmons engaged in "jailhouse snitching" and that he believed that Simmons also informed on him in connection with the burglary.

During direct examination, defense counsel asked Izquierdo if he was aware of Simmons' reputation in the community for truthfulness, a question the prosecutor later conceded was proper under N.J.R.E. 608. Rather than answering the question "yes" or "no," Izquierdo responded that Simmons was the "[b]iggest liar I ever knew." The prosecutor objected. The trial judge sustained the objection but also noted, erroneously, that the question was an improper question. Defense counsel did not object to the ruling or request a sidebar conference to discuss it. Rather he asked another question, concerning whether the witness had "had any experience personally with Mr. Simmons where you formed an opinion as to whether he was telling the truth or lying?" The court sustained the State's objection to this question. Although Izquierdo was not permitted to testify about Simmons' community reputation for truthfulness, he was permitted to testify that Simmons had a history of burglary convictions. Izquierdo also admitted to his own history of convictions for burglary, receiving stolen property and theft.

Significantly, Simmons' testimony was the only evidence supporting the charge that defendant committed robbery against Wimbush, and it was the only evidence supporting the charge of felony murder, which was premised on the assertion that defendant shot Wimbush during the course of a robbery. The jury acquitted defendant on both of those charges.

Defendant testified that he was in the general vicinity of the CCP projects on the night of the murder, but he denied robbing Joseph Robinson or killing Wimbush. He testified that he was wearing a yellow leather jacket that night, but that he lost the jacket. He testified that a woman named Karen Reid gave him a ride to the vicinity of Jefferson Street and North 3rd Street. Since it was hot in her car, he took his jacket off. As she stopped to let him out of the car, they were having an argument, and she abruptly drove off with his jacket still in her car. Defendant testified that he met some friends at North 3rd Street, talked to them for a while and then headed to a bar to buy some cigars. As he walked toward the bar, a man dressed in dark clothing ran past him and, as he ran, he threw something. When defendant walked over to see what the man had discarded, he found a black leather jacket. Although he had no coat on this January night, defendant did not put on the jacket. Rather, he slung the jacket over his shoulder and walked in the direction of his sister's house on North 3rd street, intending to put the jacket away and give it to one of his friends later. Suddenly, he was accosted by police. He testified that he ran from them because he had an outstanding violation of probation and did not want to be apprehended. Defendant denied that there was a gun in the jacket or that he ever attempted to shoot either officer. He admitted cursing at the police but contended that he did not threaten to kill them. He testified that he threatened to sue them for brutality, because they kicked him in the side and in the groin and dragged him to the police car.

Defendant admitted that he might have been wearing the hat that the police found on Jefferson Street, and he admitted that on that night, he was wearing black Columbia brand boots with a yellow logo. But he denied ever wearing a scarf, although he was photographed wearing one in the mug shot taken the night of his arrest. At the prosecutor's request, defendant tried on the black leather jacket during the trial. He was able to put it on, but he claimed that it did not fit him because the sleeves were too short. During his summation, the prosecutor, who contended that he was approximately the same build as defendant, also tried on the jacket in an attempt to demonstrate that if he held his arms in the same posture as defendant had when he claimed the sleeves were too short, the sleeves would naturally ride up on his arms, although they were not too short when he stood naturally. Plaintiff's counsel did not object.

The jury returned a verdict of guilty on all charges other than the robbery of Wimbush and the felony murder of Wimbush. As the jury was announcing its verdict on the first thirteen charges, defendant began screaming and cursing and, as a result, the judge ordered that he be removed from the courtroom. Based on defendant's unruly conduct, including a scuffle with Sheriff's officers outside the courtroom, the judge did not have defendant brought back into the courtroom when he charged the jury on the last charge, (possession of a weapon by one not lawfully permitted to possess a weapon), nor during the verdict on that charge.

II

On this appeal, defendant, through his counsel, raises the following arguments:

POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT IMPROPERLY PRECLUDED DEFENDANT FROM INTRODUCING OPINION EVIDENCE PURSUANT TO N.J.R.E. 608 TO ATTACK THE CREDIBILITY OF THE STATE'S CHIEF WITNESS.

POINT II: THE UNNECESSARY ADMISSION OF DEFENDANT'S POST-ARREST BAD ACTS, WHICH INCLUDED [THREATENING] TO KILL THE ARRESTING OFFICERS, COUPLED WITH THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION, VIOLATED N.J.R.E. 404(b) AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT III: DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON IDENTIFICATION.

POINT IV: IMPOSITION OF CONSECUTIVE PRISON TERMS ABOVE THE PRESUMPTIVE VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW.

POINT V: THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S MURDER, ROBBERY, AND ATTEMPTED MURDER CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).

POINT VI: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A LIFE TERM WITH 35 YEARS OF PAROLE INELIGIBILITY PLUS TWO TWENTY-YEAR TERMS WITH 85% PERIODS OF PAROLE INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

Defendant raises the following additional contentions in a supplemental pro se brief:

POINT I: THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER CONSTITUTED A VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. ART. I, PARS. 1, 9 AND 10.

POINT II: THE EXCLUSION OF THE DEFENDANT FROM HIS TRIAL FOR THE CERTAIN PERSONS NOT TO HAVE WEAPONS OFFENSE VIOLATED THE DEFENDANT'S RIGHT TO BE PRESENT AT EVERY STAGE OF HIS TRIAL AND AS A RESULT MUST BE REVERSED.

POINT III: DEFENDANT'S CONSTITUTIONAL RIGHT TO BE PRESENT AT EVERY STAGE OF HIS TRIAL WAS VIOLATED WHEN THE TRIAL COURT DEALT WITH A JURY REQUEST WITHOUT THE PRESENCE OF DEFENDANT OR TRIAL COUNSEL THEREFORE THE CONVICTION SHOULD BE REVERSED.

POINT IV: THE FAILURE OF DEFENSE COUNSEL TO MOVE TO SEVER THE SEPARATE AGGRAVATED ASSAULT OFFENSES ON THE POLICE FROM THE HOMICIDE CASE RESULTED IN UNDUE PREJUDICE BECAUSE OF THE OTHER-CRIMES-EVIDENCE STEMMING FROM THE AGGRAVATED ASSAULT OFFENSES WAS A DENIAL OF THE DEFENDANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.

Having thoroughly reviewed the record, including the entire trial transcript, we conclude that none of these contentions have merit, and we affirm the conviction and the sentence. Except to the extent discussed below, we find that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant correctly contends that the trial judge erred in ruling that his counsel's question to Izquiredo concerning Simmons' reputation for truthfulness was an improper question. As the prosecutor later conceded in colloquy after the trial testimony was concluded, the question was proper under N.J.R.E. 608. See State v. Guenther, 181 N.J. 129, 140 (2004). But Izquierdo's answer was non-responsive and inadmissible because he gave his personal opinion that Simmons was a liar, instead of stating whether or not he knew of Simmons' reputation in the community. Ibid. Thus, the prosecutor's objection was properly sustained. Rather than sua sponte remarking that the question was improper, the court should have stricken the answer as non-responsive and permitted defense counsel to pose the question again, clarifying for the witness that he should answer it yes or no.

Having reviewed the entire trial transcript, however, we conclude that this error was harmless because, in the context of this trial, there is no possibility that this ruling could have affected the outcome. As the Supreme Court said in State v. Bankston, 63 N.J. 263 (1973):

The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.

[Id. at 273.]

We perceive little likelihood that the jury would have attached weight to the testimony of one convicted burglar concerning the community reputation for truthfulness of another convicted burglar. Moreover, the defense was able to elicit far more damaging testimony concerning Simmons' credibility in the form of his lengthy history of crimes of dishonesty. And even the prosecutor admitted, in his summation, that portions of Simmons' testimony were incredible. Further, the jury evidently did not believe Simmons' testimony, because they acquitted defendant on the two charges - robbery of Wimbush and felony murder - as to which Simmons' testimony was the only evidence. Finally, the State presented overwhelmingly strong circumstantial evidence of defendant's guilt on all of the other charges. Defendant was apprehended in the area toward which witnesses told the police the killer had fled; he was caught with the murder weapon in his possession, dressed in the black jacket and black-and-yellow boots that witnesses testified the killer was wearing, and walking with the limp which the witnesses said was characteristic of the killer's gait.

We likewise find no merit in defendant's contentions concerning the inadmissibility of his post-arrest statements to the police. N.J.R.E. 404(b), which prohibits the admission of evidence of bad acts or other crimes committed on other occasions to prove that defendant committed the acts with which he is currently charged, does not pertain to bad acts which are part of the res gestae or components of the crimes with which defendant is charged. N.J.R.E. 404(b); State v. Martini, 131 N.J. 176, 240-42 (1993) overruled on other grounds by State v. Fortin, 178 N.J. 540, 632-633 (2004); State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). In this case, defendant's cursing and his statements that the police should have shot him were relevant to the charge of resisting arrest, since they demonstrated that defendant intended to avoid arrest at any cost. His threats to kill the police were likewise relevant to the charge of attempted murder of Officer Giuliana. This evidence supports an inference that when defendant and Officer Ferrigno were struggling over the gun, defendant was intending to shoot Ferrigno's partner, Officer Giuliana. The evidence of defendant's angry, aggressive and irrationally violent state of mind a very short time after the murder is also relevant to explain the murder itself. According to witnesses, the only apparent motive for shooting Wimbush was that the killer thought Wimbush had been taunting or insulting him. Defendant's demonstrated emotional state near the time of the murder was consistent with that of someone who would shoot another person over an insult.

Likewise we find no merit in defendant's argument, raised for the first time on appeal, that the trial judge should have given the jury an identification charge. Defendant's counsel did not request an identification charge, and the charge was not required in light of the evidence presented at trial. None of the witnesses to the murder saw defendant's face and none of them identified defendant as the killer. Moreover, defendant's identity at the arrest scene was not in issue. He admitted that he was the person who fled from the police and whom they subsequently arrested.

Finally, we find no error in the sentences imposed. The trial judge provided a cogent explanation for imposing consecutive sentences, premised on his conclusion that the robbery of Robinson, the murder of Wimbush, and the incidents with the police were "three separate events," with separate victims. See State v. Carey, 168 N.J. 413, 429-31 (2001); State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014 (1986). We find no abuse of discretion in the length of the sentences imposed. See State v. Roth, 95 N.J. 334 (1984). Defendant had numerous prior convictions for violent crimes, and the trial judge's reliance on defendant's prior record does not offend the principles recently set forth in State v. Natale, 184 N.J. 458, 481-82 (2005).

 
Affirm.

Defendant was convicted of the following charges: murder, N.J.S.A. 2C:11-3a(1) or (2); robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; possession of a prohibited weapon, N.J.S.A. 2C:39-3f; attempted murder, N.J.S.A. 2C:5-1 and 2C-11-3; aggravated assault, N.J.S.A. 2C:12-1b(5)(a); possession of weapon for unlawful purpose, N.J.S.A. 2C:39-4a; aggravated assault, N.J.S.A. 2C:12-1b(1); aggravated assault, N.J.S.A. 2C:12-1b(5)(a); resisting arrest, N.J.S.A. 2C:29-2a(1)and/or (2); certain person not to have weapons, N.J.S.A. 2C:39-7.

The consecutive sentence for murder was mandatory, because the offense was committed while defendant was out on bail for another, unrelated offense. He was convicted on the earlier charge and was serving his prison sentence for that offense at the time he was sentenced for the murder. See N.J.S.A. 2C:44:5-1.

Prior to the trial, the judge had instructed counsel to come to sidebar if they wished to make an objection requiring more than one or two words (e.g. "leading.") or if they wished to discuss an objection.

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A-1732-03T4

February 2, 2006