STATE OF NEW JERSEY v. WILLIAM PURNELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1768-04T41768-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM PURNELL,

Defendant-Appellant.

_______________________________________

 

Submitted October 5, 2006 - Decided November 15, 2006

Before Judges Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-10-3525.

Yvonne Smith Segars, Public Defender, attorney for appellant (Barbara A. Hedeen, Assistant Deputy Public Defender, of counsel and on the brief).

James P. Lynch, Acting Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant William Purnell was convicted of all four counts of an indictment charging him with first-degree carjacking, in violation of N.J.S.A. 2C:15-2a(2); first-degree robbery, in violation of N.J.S.A. 2C:15-1; second degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5b. Defendant was sentenced to an aggregate term of twenty-seven years imprisonment. He appeals his conviction and his sentence on various grounds. We affirm the conviction, but remand for resentencing.

The proofs before the jury supported the following narrative of the underlying facts.

On the evening of August 17, 2002, Earl Lattie, who had just returned from the airport after a vacation, met up with his long-time friend Omari Alston. Around 2:30 a.m., Lattie began driving Alston back to his home in Lawnside. On the way, Lattie decided to stop at a pizzeria to get something to eat. Lattie parked his car near the pizzeria.

As Lattie went inside to place his order, he nodded at a young African-American man outside the pizzeria, later identified as defendant. Lattie recognized the young man as a person "from the neighborhood," either from grade school or high school. Lattie did not know the young man's name. The young man was wearing a red, white and blue baseball cap, a white bandana under the cap, a white T-shirt, and blue jeans.

After ordering his food, Lattie went back to his car and moved it to a spot in the establishment's parking lot, which was closer to the pizzeria. He talked with Alston for a while, and then went back inside the pizzeria to check on his food. Lattie noticed that the young man he had recognized earlier was speaking to someone in a car parked behind his car. As Lattie went inside, Alston observed defendant carrying a bag to the car parked behind Lattie's vehicle.

At this point, the young man entered the car from the driver's side, pointed a handgun at Alston, and demanded money. Alston gave him the $40 on his person. The young man then requested that Alston "take [a] ride" with [him]." Alston declined, and jumped out of the car. Alston then climbed onto the hood of the car, trying to prevent his attacker from driving off. However, the thief backed the car up, shaking Alston off the hood, and drove away. Lattie, meanwhile, had emerged from the pizzeria, saw the young man brandishing a gun at Alston, and called 9-1-1 from a pay phone.

During the next few days, Lattie spoke to family and friends, who he later described as "[p]eople on the street," and related to them what had happened at the pizzeria. They allegedly told Lattie that the former schoolmate he described to them was named "Will." This led the police, after interviewing Lattie and Alston, to search a computerized database of photographs for African-American males whose first names were "William" or some variant of William. Lattie and Alston were then shown computerized photographic arrays resulting from that mug shot search. Both of them identified defendant, whom they remembered from their school days, as the assailant.

Defendant was subsequently arrested. The police dusted Lattie's car, which had been located three days after the incident, for defendant's fingerprints, but none were found. A grand jury thereafter indicted defendant for the four crimes noted above.

Prior to trial, the Law Division conducted a Wade hearing on the victims' identifications of defendant. After hearing the testimony of the two detectives who had respectively shown Lattie and Alston the photo arrays, the court concluded that the identifications of defendant by Lattie and Alston were admissible.

Lattie and Alston testified at the ensuing two-day trial, and reiterated their identifications of defendant. The State also presented the testimony of the two detectives who had procured the identifications. It also presented the police officer who had conducted the initial interviews of Lattie and Alston and who had thereafter participated in the investigation of the crime and the search for Lattie's missing vehicle. Defendant presented no witnesses.

The jury convicted defendant after three hours of deliberations. This appeal ensued.

Defendant raises two arguments on appeal:

POINT ONE

EARL LATTIE'S TESTIMONY, THAT HE HAD OBTAINED INFORMATION FROM PEOPLE IN THE NEIGHBORHOOD THAT DEFENDANT WAS THE CARJACKER, VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION, THE PROHIBITION AGAINST HEARSAY EVIDENCE AND STATE V. BANKSTON, THEREBY DEPRIVING HIM OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT TWO

THE SENTENCING HEARING WAS SO RIDDLED WITH ERRORS THAT MR. PURNELL'S SENTENCE MUST BE REDUCED OR THE MATTER REMANDED FOR RESENTENCING.

We consider each of these issues in turn.

I.

Without any objection from defense counsel, Lattie testified at trial that, although he knew defendant "by his face" from their school days and had recognized him outside the pizzeria, he did not at first recall his name. As defense counsel brought out on cross-examination, Lattie had obtained defendant's name after conferring with Alston about their perceptions of the attacker and then speaking with "[p]eople on the street" who knew defendant as "Will." Defendant's trial counsel did not move to strike Lattie's reference to what he had been told by others. Defendant now contends it was plain error for this testimony to be heard by the jury. We disagree.

Initially, we concur with defendant that out-of-court statements other persons made to Lattie, linking the name "Will" to his description of the person who had attacked Alston and who had stolen his car, would be hearsay if offered for their truth. See N.J.R.E. 801(c). Since the statements in question were made known to the jury through defense counsel's own examination, the purpose for which they were "offered" is not readily apparent.

Lattie mentioned the other persons' statements, without describing with particularity their contents, to explain how he came to realize the car thief's name. In this respect, the statement had a non-hearsay aspect. But, in the absence of a limiting instruction under N.J.R.E. 105, the statements also had the capacity to serve as substantive proof of the offender's identity. Without such judicial guidance, the statements could have been considered by the jury for their truth. The fact that the declarants were not identified, or their particular words were not quoted in Lattie's testimony, does not preclude the statements from being classified as hearsay. See State v. Frisby, 174 N.J. 583, 591-96 (2002) (holding that police detective had improperly testified that hearsay declarants he interviewed had "substantiated" the victim's account of the crime); see also Beasley v. Passaic County, 377 N.J. Super. 585, 602-04 (App. Div. 2005) (holding that the trial court should have excluded, as hearsay proof, testimony in an employment case that an unidentified person called "downtown" had wanted the plaintiff fired).

Additionally, we do not subscribe to the State's contention that the out-of-court statements made to Lattie are within the hearsay exception for matters of a person's "personal or family history." N.J.R.E. 803(c)(19). The case that the State cites to us applying that exception, State v. Perez, 150 N.J. Super., 166 (App. Div. 1977), certif. denied, 75 N.J. 542 (1977), is not on point. Perez involved reputation testimony, specifically that defendant had been known in the community for his ash-colored hair, and thus had the nickname of "Cen zo," a spanish term equivalent to "Whitey." Here, the information that Lattie received from other persons about defendant's identity was not reputational. Rather, it disclosed defendant's actual first name of William, shortened to "Will." We decline to shoehorn those out-of-court assertions into the reputation framework of N.J.R.E. 803(c)(19).

Nonetheless, we perceive no reversible error in the admission of Lattie's testimony on this subject. Defendant argues that State v. Bankston, 63 N.J. 263, 268-69 (1973) requires the reversal of his conviction because of the hearsay statement of the "people on the street" consulted by Lattie. However, Bankston involved testimony by several police officers, who had divulged on the witness stand that an informer had provided them with a description of a person who had committed a crime, suggesting that the description matched the features of defendant. Id. at 266-67. Under those particular circumstances, the Supreme Court held in Bankston that it was improper for the prosecutor to convey such incriminating hearsay proof through the police officers' testimony. Ibid.

The present case is far different from Bankston. The friends and family consulted by Lattie after the incident at the pizzeria had no knowledge themselves of defendant's criminal conduct. Unlike the police officers in Bankston, the trial witness who spoke with the declarants out of court, Lattie, had personally observed the crime and thus possessed his own personal knowledge of the suspect's activities and appearance. After being shown police photographs, Lattie was able to identify defendant from his own perceptions and recollections, and he reaffirmed that positive identification in court. Likewise, the other victim, Alston, twice identified defendant, once in the stationhouse photo array and again in the courtroom. The photo array procedure was not unduly suggestive. Defendant also does not dispute that his first name is indeed "William", or that he formerly attended school with Lattie and Alston. As his former schoolmates, Lattie and Alston had an independent basis to recognize him visually.

In sum, this is not, as in Bankston, a situation fraught with the hazards of incriminating hearsay proofs presented to a jury indirectly through police officers. Our assessment would be entirely different if Lattie and Alston had not testified and, instead, an investigating police officer had taken the stand and related that he had been informed by "[p]eople on the street" of the identity of a perpetrator. See also State v. Baker, 228 N.J. Super. 135, (App. Div. 1988) (arresting police officer testified that a drug informant had provided a telephone tip that, in essence, admitted driving a car in which defendants were found with heroin); State v. Bowens, 219 N.J. Super. 290, 297-301 (App. Div. 1987) (a police officer revealed to the jury that an out-of court declarant had reported defendant's alleged prior act of child abuse).

Because defendant did not object to the admission of any of

this testimony at trial, his claim of prejudice is governed by the plain error rule. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). We are satisfied that any error in the receipt of Lattie's testimony was harmless, and was not "clearly capable of producing an unjust result." Id. at 337. The unwavering in-court and out-of-court identifications of defendant by Lattie and Alston, who were not strangers to the defendant, supplied powerful evidence of his guilt, notwithstanding the absence of defendant's fingerprints on Lattie's car. There were no alibi witnesses or defense counterproofs to vitiate the State's evidence.

Additionally, we discern no deprivation of defendant's constitutional right of confrontation, as the conversations that Lattie had with his friends and family after the crime were obviously not "testimonial" in nature. See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177, 194 (2004) (Confrontation Clause only forbids the hearsay use of "testimonial" out-of-court declarants); see also Davis v. Washington, _____ U.S. ______, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (applying Crawford's "testimonial" standard for the exclusion of hearsay against an accused). In sum, we are persuaded that defendant's convictions were not impermissibly tainted by hearsay and accordingly sustain them.

We have considered the remaining subsidiary arguments presented by defendant to set aside his conviction, and determined that those claims lack sufficient merit to warrant further discussion. R. 2:11-3e(2).

II.

Defendant's twenty-seven-year aggregate sentence resulted from the following components: a twenty-two-year term on the carjacking offense (Count One); a concurrent term of seventeen years on the first-degree robbery offense (Count Two); a concurrent term of eight years on the unlawful-purpose weapons offense (Count Three); and a consecutive five-year term on the fourth-degree offense for the unlawful possession of a weapon (Count Four). By virtue of the application of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, to Counts One and Two, the Graves Act, N.J.S.A. 2C:43-6c, to Count Three, and an additional two years of discretionary parole ineligibility imposed on Count Four pursuant to N.J.S.A. 2C:43-6b, defendant's aggregate twenty-seven-year sentence is conditioned upon a total period of parole ineligibility of twenty years, eight months and fifteen days.

Defendant argues that his cumulative sentence is excessive and that the findings of the sentencing judge were deficient in several respects. Without negating the serious nature of defendant's criminal wrongdoing on August 18, 2002, we agree that the matter should be remanded for reconsideration of his sentence.

Defendant was twenty-four-years old at the time of the instant offenses. Defendant had been institutionalized on multiple occasions for mental health treatment. His only prior conviction, ignoring an arrest subsequent to the offenses at issue in the present appeal, was for a third-degree offense in 1998 for the possession of narcotics with intent to distribute them in a school zone. Indeed, the trial judge initially remarked at sentencing that defendant "doesn't have a significant record," although the judge later in the transcript classified the prior drug conviction as "very serious."

In imposing this substantial sentence on defendant, the judge identified three aggravating factors under N.J.S.A. 2C:44-1a, specifically factors (3) (risk of reoffense); (6) prior criminal history and (9) (the need for deterence). The judge identified one mitigating factor under N.J.S.A. 2C:44-1b, specifically factor (6) (defendant has or will compensate the victims). The sentencing judge inadvertently referred twice to defendant's present offense as "kidnapping." Further, the victims involved in the crime sustained no bodily injuries.

Although we are mindful of our severely limited standard of review of sentencing decisions, see State v. Roth, 95 N.J. 334, 365 (1984) (appellate courts may not substitute their judgment for that of the sentencing court, unless the application of the sentencing guidelines to the facts makes the sentence "clearly unreasonable so as to shock the judicial conscience"), we perceive a number of problems with the court's sentencing analysis. First, the court did not merge the unlawful-purpose weapons conviction in Count Three with either the carjacking conviction in Count I or the robbery conviction in Count II. Such merger was required because the jurors determined that defendant's unlawful purpose in possessing the handgun was to use it against one of the robbery victims. See State v. Diaz, 144 N.J. 628, 636-42 (1996).

Additionally, the sentencing transcript inadequately reflects the court's reasons for imposing the five-year consecutive sentence on Court Four, as is required by State v. Yarbough, 100 N.J. 627, 644 (1985) (requiring findings to establish how the crimes at issue are "predominantly independent" of one another). Although we will await the final judge's ultimate explanation on resentencing, it would appear that the crimes here were not so independent to support a consecutive term, notwithstanding the judge's observation that defendant lacked a permit to carry a gun.

Third, the sentencing findings are inadequate to support the imposition of the two-year discretionary period of parole ineligibility on Count Four. See State v. Kruse, 105 N.J. 354 (1987).

The State concedes that these omissions require a remand for resentencing on courts Two, Three and Four. Although at this time we do not disturb the twenty-two year term imposed on Count One, we do suggest that the judge re-examine that sentence as well, in conjunction with the remand proceedings, and take a fresh look at the pertinent aggravating and mitigating factors in light of any additional information that may come to his attention. In making that suggestion, we do not preordain that the court reduce the twenty-two-year term on Count One, which is two years above the twenty-year sentencing midpoint for carjacking, see N.J.S.A. 2C:15-2b, but simply recommend that further consideration of that sentence be afforded when the matter returns to the Law Division.

Lastly, we do reject defendant's contention that he has a constitutional right to be resentenced on the carjacking offense under State v. Natale, 184 N.J. 458 (2005). Natale is inapplicable to this case because there was never a presumptive term for carjacking. See State v. Drury, 382 N.J. Super. 469, 487 (App. Div. 2006).

III.

In summary, defendant's conviction is affirmed on all aspects, but his sentence is remanded for further proceedings consistent with this opinion.

 

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

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A-1768-04T4

November 15, 2006