STATE OF NEW JERSEY v. WILLIAM BELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03264-04T403264-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

WILLIAM BELL,

Defendant-Appellant.

_______________________________________

 

Submitted April 4, 2006 - Decided July 27, 2006

Before Judges Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-07-2492.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

Appellant filed two pro se supplemental briefs.

PER CURIAM

Defendant William Bell appeals his convictions for second-degree aggravated assault in violation of N.J.S.A. 2C:12-1b(1) and second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4a, following a jury trial in 2004. The jury acquitted defendant of a more serious charge of attempted murder.

The offenses arise out of a violent encounter between defendant and the victim, Yasim Manley, in April 1995. Defendant was a fugitive for several years following the incident, and police eventually apprehended him in upstate New York in December 2001. Defendant was sentenced to ten years imprisonment with a five-year period of parole ineligibility.

Defendant, through his appellate counsel and in two supplemental pro se briefs, raises a variety of grounds for appeal. Specifically, his attorney raises the following points:

POINT I:

THE TRIAL COURT REVERSIBLY ERRED IN PRECLUDING DEFENSE COUNSEL FROM CROSS-EXAMINING YASIM MANLEY ON HIS PRIOR INCONSISTENT STATEMENTS FROM HIS TESTIMONY BEFORE THE GRAND JURY THEREBY DENYING [DEFENDANT'S] STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINST [HIM]

POINT II:

THE TRIAL COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A FALSE IN ONE, FALSE IN ALL CHARGE TO THE JURY

POINT III:

THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED, PURSUANT TO N.J.R.E. 403, THE BLOODY AND INFLAMMATORY PICTURES OF THE CRIME SCENE AND THE RELATED TESTIMONY, ANY RELEVANCE OF WHICH WAS FAR OUTWEIGHED BY THE EXTREME PREJUDICE TO [DEFENDANT]

POINT IV:

THE TRIAL COURT ERRONEOUSLY DENIED [DEFENDANT'S] MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE

POINT V:

THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO ADEQUATELY RESPOND TO THE JURY'S QUESTIONS DURING DELIBERATIONS REGARDING THE ELEMENTS OF COUNT 1, ATTEMPTED MURDER, AND COUNT 2, AGGRAVATED ASSAULT

POINT VI:

THE TRIAL COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR AN ORDER VACATING THE VERDICT AND ACQUITTING [DEFENDANT] ON THE GROUNDS OF AN INCONSISTENT VERDICT

POINT VII:

[DEFENDANT'S] TEN-YEAR MAXIMUM SENTENCE FOR A SECOND-DEGREE CONVICTION WAS ILLEGAL AND UNCONSTITUTIONAL BECAUSE THE FACT-FINDING WAS PERFORMED BY THE COURT, NOT THE JURY [,] IN VIOLATION OF [DEFENDANT'S] CONSTITUTIONAL RIGHTS TO CONFRONT WITNESSES AGAINST HIM AND TO AN IMPARTIAL JURY TRIAL

Additionally, defendant raises the following arguments in his initial supplemental pro se brief, several of which are not germane to the present appeal. Although he did not use point headings, contrary to R. 2:6-2(a)(5), defendant argued that: (1) he was denied a speedy trial; (2) he was wronged by a plea agreement on an unrelated indictment; (3) his rights as a prisoner were violated by the conditions of his confinement; (4) he was deprived at trial of the effective assistance of counsel; and (5) the trial judge was prejudiced and biased. After the State responded to those arguments, defendant filed a pro se letter reply, which essentially repeated his earlier contentions.

Having considered all of these points and the record as a whole in light of the applicable law, we affirm the convictions, but remand for resentencing under State v. Natale, 184 N.J. 458, 494-96 (2005).

I.

The charges on which defendant was convicted stem from events that took place on April 5, 1995 in Newark. According to the State's proofs, defendant, while in the apartment of Jacqueline James, shot Yasim Manley multiple times at close range in the face, torso, arms and legs. Defendant also beat Manley over the head with a pole. Defendant then left the apartment building, while Manley, lying in a pool of his own blood, crawled out of James's apartment and into the hallway, where he pleaded with neighbors for help. Manley, a former Rutgers athlete and semi-pro basketball player, survived the shooting but sustained permanent injuries. Manley testified for the State at defendant's trial.

According to the victim's trial testimony, at the time of the attack defendant was living with his girlfriend James. Manley, who was friendly with James and her son, lived across the street. About three days prior to the shooting, defendant approached Manley and asked to borrow his BMX bike because his car had been stolen. Manley loaned his bike to defendant for five dollars. Manley testified that he went to James's apartment on April 5 to retrieve his bike.

Defendant and James were in the apartment that afternoon when Manley knocked on the door. According to Manley, after he entered the apartment, defendant locked the door behind him with a "pole lock." Manley testified that defendant accused him of being involved with the theft of his car. Defendant then pulled a gun. Manley ran towards the door and tried unsuccessfully to remove the pole lock. Defendant then fired two shots, hitting Manley in the hip and face. According to Manley's testimony, as he lay on the floor by the front door, defendant removed the pole lock and hit him on the head with it, and then shot him several more times.

After the shooting, defendant left the apartment. According to Manley, defendant instructed James to clean up the blood and make sure that Manley was out of the apartment by the time he got back. Manley managed to crawl into the hallway, where he banged on neighbor Lillian Nieves's door for help. Manley also testified that another tenant in the building, Rolanda Hutchins, had come to James's door after hearing gunshots, and that defendant had told her to "get away from the door."

Defendant took the stand in his own defense at trial. According to defendant's version of events, Manley was the aggressor. Defendant denied ever borrowing Manley's bike and testified that he had his own bike. According to defendant, the altercation that day was not about defendant's car or Manley's bike, but rather about Manley's relationship with James and her son. Defendant claimed that Manley was a bad influence on James' son and spent too much time at James's apartment. In that regard, defendant claimed that he had a conversation with Manley earlier that day and told Manley to stay away from the apartment.

By defendant's account, Manley left after their conversation, but then returned later with the gun and attacked him. Defendant alternatively claimed that the gun either accidentally went off as the two men struggled, or that he had fired the gun in self-defense. When asked how Manley had been shot eight times, defendant could not clearly recall if the gun just "went off" or if he actually held the gun and had pointed and fired it at Manley.

Defendant was indicted by an Essex County grand jury in July 1995 for first-degree attempted murder, second-degree aggravated assault, and second-degree possession of a weapon for an unlawful purpose. However, defendant avoided arrest by fleeing to New York State, where he remained for the next seven years. Defendant was not returned to New Jersey until December 2001, when he was arrested in upstate New York on a bench warrant and brought back to Essex County.

The jury trial took place in April 2004 over the course of five days. As noted, the jury acquitted defendant of the attempted murder count, but convicted him on the aggravated assault and weapons counts.

At sentencing in June 2004, the trial court merged defendant's weapons conviction into the second-degree aggravated assault conviction. The court found only one mitigating factor in its sentencing analysis, that this was defendant's first indictable conviction, see N.J.S.A. 2C:44-1b(7); but it noted several aggravating factors, including the heinous nature of the offense, the gravity of the harm inflicted, the risk that defendant would commit another crime, and the need for deterrence. See N.J.S.A. 2C:44-1a(1), (2), (3) and (9). The court accordingly imposed upon defendant the maximum ten-year-sentence on the second-degree conviction, with a five-year period of parole ineligibility under the Graves Act. See N.J.S.A. 2C:43-6. Customary fines and penalties were also imposed.

This appeal ensued.

II.

We address, in turn, the substantive arguments raised by defense counsel, none of which are sufficient to invalidate the defendant's conviction.

A.

As an initial point, defendant contends that the trial judge improperly curtailed the cross-examination of the victim, Yasim Manley. Specifically, defendant principally argues that his counsel should have been permitted to ask Manley whether Manley had suggested to the grand jury that defendant had driven away from the crime scene in a car. Such access to a car arguably could have undercut the State's theory that defendant had borrowed Manley's bicycle because he had no other means of transportation. It also might have dispelled the State's theory that defendant was angry with Manley because he thought that Manley had recently been seen in defendant's allegedly-stolen car. The trial judge had permitted defense counsel to probe on cross-examination of Manley into other aspects of his grand jury testimony, but foreclosed counsel from asking about defendant getting into a car.

We recognize that counsel ordinarily are given wide latitude to ask relevant questions on cross-examination. However, the right of cross-examination is not unbounded. The court may exercise reasonable control over witness questioning, see N.J.R.E. 611, and has the discretion to exclude proofs that have little probative value and would confuse, distract or mislead the jury. See N.J.R.E. 403. As we have previously observed, "[w]e will not interfere with the trial judge's authority to control the scope of cross-examination 'unless clear error and prejudice are shown.'" State v. Messino, 378 N.J. Super. 559, 583 (App. Div.), certif. denied, 185 N.J. 297 (2005) (quoting State v. Gaikwad, 349 N.J. Super. 62, 87 (App. Div. 2002)).

No such "clear error and prejudice" are demonstrated here. The grand jury statement about defendant's car, which defense counsel sought to bring out on Manley's cross-examination, was entirely conjectural. Manley, who had been lying in the apartment in a pool of blood when defendant fled, merely told the grand jury that he "guess[ed]" that defendant had left the area in a "car." This speculation does not amount to a prior inconsistent statement that would reasonably serve to impeach Manley's trial account of the genesis of the altercation.

Manley had no personal knowledge of how defendant escaped from the scene of the attack. See N.J.R.E. 602 (witnesses shall testify on personal knowledge). He simply returned before the grand jury an uneducated "guess" that defendant left in a car, speculation that had negligible probative value. Indeed, the supposed car could have been someone else's car. Despite defendant's hypothesis of relevance, the prior statement would hardly have been of consequence, particularly given the fact that Manley's bicycle wheel was found by police in a search of defendant's apartment. We therefore affirm the trial judge's exercise of discretion in disallowing the proffered inquiry.

As a procedural aspect of his argument, defendant contends that the trial judge erred by allegedly forcing defense counsel to obtain advance approval of his cross-examination questions at sidebar. A fair reading of the transcript, however, reveals no such error. Counsel had appeared at sidebar to deal with the prosecutor's anticipated objections to defense counsel's forthcoming cross-examination regarding Manley's grand jury testimony. During that sidebar, defense counsel proffered certain questions that he wished to pose, but made no mention of his intent to cross-examine Manley regarding his prior conjecture about defendant getting into a car. Defense counsel confined his proffer to "lines 17 to 19" of the grand jury transcript, and the prosecutor thereupon withdrew his objection.

After the sidebar concluded, defense counsel began delving into this new issue, jumping ahead to line 21 of the grand jury transcript. The judge rightly was concerned that defense counsel was about to spread inadmissible matters before the jury, without having the State's likely objection to those matters addressed at sidebar. Although we ascribe no ill motive to defense counsel in surprising his adversary with this new material, the trial judge was within his prerogatives under N.J.R.E. 611 to exercise reasonable control over the questioning process to prevent defense counsel from exceeding his own sidebar representations on the anticipated scope of his inquiries. We are satisfied that the trial judge did not abuse his discretion in this respect either.

We also are satisfied that the court's other rulings that channeled the permissible scope of Manley's cross-examination, as particularly identified in appellant's brief, were prudent and well founded, and likewise involved no abuse of discretion.

B.

Defendant further contends that the trial judge erred in denying his request to include in the jury charge a "false-in-one, false-in-all" instruction on witness credibility. See Model Jury Charge (Criminal) (rev. 5/25/91); see also State v. D'Ippolito, 22 N.J. 318, 324 (1956) (charge may be given where a witness willfully testified falsely to a material fact). The thrust of defendant's argument is that the instruction was warranted because Manley's testimony recounting the details of the crime varied at times from his grand jury testimony and his statements to medical personnel.

The "false-in-one, false-in-all" charge is entirely discretionary. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). We perceive no misapplication of that discretion here in withholding the charge. Indeed, since defendant himself testified in this case, such a charge may well have injured his own credibility on numerous factual details, such as the ownership of the bike in the apartment and the manner in which the gun fired. Notably, defense counsel did not renew his request for this charge after his client took the stand. Lastly, we note that the trial judge did give the standard charge on witness credibility, including the portion instructing that the jury may consider prior inconsistent statements by a witness as bearing upon its assessment of that witness's credibility. We detect no reversible error in these circumstances.

C.

Defendant next ascribes error to the trial judge's admission of eight photographs of the crime scene depicting the trail of blood from the apartment kitchen to the door. These photographs were probative because they helped corroborate the victim's account of the sequence of events connected with his shooting. See N.J.R.E. 401 (defining the permissive standard of relevancy). Because defense counsel did not object to the admission of the photographs, we are guided by the plain error standard. R. 2:10-2. We discern no such plain error, despite the bloody appearance of objects shown in the photographs.

The victim was badly wounded by eight or more shots to the face and elsewhere, so blood was inevitable. However, the blood shown in the photographs was on physical objects, not on Manley or on defendant, thereby mitigating its inflammatory potential. The trial judge did not abuse his discretion under N.J.R.E. 403 by admitting this evidence, there being no clear demonstration that the probative value of the photographs was "substantially outweighed" by the risk of undue prejudice. Id.; see also State v. Feaster, 156 N.J. 1, 81-84 (1998), cert. denied, sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001) (sustaining admission of murder victim's blood-stained overalls into evidence, along with photographs and a videotape of the crime scene).

D.

Defendant next argues that the trial judge erred in denying his motion for a judgment of acquittal at the conclusion of the State's case-in-chief. We first observe that defendant has not preserved his right to seek review of that determination because he failed to file a post-verdict motion for a new trial on that ground. See R. 2:10-1; State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). Moreover, the State presented ample proofs, particularly when viewed in a light most favorable to the State, see R. 3:18-1, for the jury to find beyond a reasonable doubt that defendant deliberately inflicted serious bodily injury upon Manley by shooting him multiple times and striking his head with a metal pole. This ground for appeal is equally unavailing.

E.

Defendant further argues that the trial judge erred in re-reading, in response to a written request from the deliberating jurors, the elements of attempted murder and aggravated assault. Defendant complains that the re-reading of those portions of the charge did not include a re-reading of the element of the justification of self-defense and did not repeat the parties' factual contentions on those matters; however, no such requests were ever advanced by defense counsel. We find no plain error in the judge's renewed instructions, which accurately tracked the original instructions on the elements of the principal charged crimes. R. 2:10-2.

F.

Defendant argues that the jury's acquittal on the charge of attempted murder is inconsistent with its conviction of him on the charge of aggravated assault. We agree with the trial judge that there is no inherent inconsistency in these verdicts. The evidence rationally supports findings that defendant, in repeatedly shooting Manley, did not intend to take his life but did intend to cause him serious bodily injury. See N.J.S.A. 2C:12-1b(1). Moreover, an alleged inconsistency in verdicts does not require a defendant's conviction to be reversed, so long as the conviction is based upon evidence that supports guilt beyond a reasonable doubt. State v. Banko, 182 N.J. 44, 54-55 (2004). The State's proofs on aggravated assault adequately meet this test. It is of no significance that the jury, faced with the proofs, may have reached a compromise by finding defendant guilty of one crime rather than multiple crimes. State v. Grey, 147 N.J. 4, 10 (1996) (a jury may reach inconsistent verdicts based upon considerations of compromise or lenity, so long as its determinations of guilt are adequately supported).

III.

We also have fully considered defendant's pro se arguments to set aside his conviction. We note that some of his arguments appear to relate to a separate Indictment, No. 3881-12-95, which arises out of an unrelated incident in May 1995 and which is totally distinct from the convictions before us arising out of Indictment No. 2492-7-95. We have therefore confined our review to those issues affecting the present case.

Having considered the record as a whole in light of the applicable law, we are satisfied that defendant's pro se arguments lack sufficient merit to warrant extended discussion. See R. 2:11-3(e)(2); State v. King, 372 N.J. Super. 227, 231 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005).

Briefly, we note that defendant, who fled New Jersey after this crime and who lived out-of-state for at least six years under various assumed names until his apprehension in New York, was not denied a speedy trial. Defendant cannot claim prejudice in the delay arising out of the extensive period when he was a fugitive. Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 1574, 26 L. Ed. 2d 26, 38 (1970) (Brennan, J., concurring). The additional lapse of time between his apprehension in December 2001 and his April 2004 trial is readily explained by the State's understandable need to reactivate a six-year-old case and also by several intervening events, including defendant's numerous pretrial motions, the negotiation and eventual withdrawal of a plea, two substitutions of defense counsel and a change in the judge assigned to the case.

We also are unpersuaded by defendant's claims that the pretrial judge and the trial judge were biased and unfair, as defendant's claims essentially boil down to dissatisfaction with those judges' rulings on both the merits of his pretrial motions as well as his counsel's objections during the trial.

Further, we do not agree with defendant that a charge of the lesser-included offense of passion/provocation manslaughter was clearly indicated by the trial proofs, cf. State v. Robinson, 136 N.J. 476, 489 (1994) (requiring such a charge only when the proofs "clearly indicate" its delivery). Moreover, no prejudice could have arisen from the charge's omission since defendant was acquitted of the more severe offense of attempted murder, and Title 2C does not recognize passion/provocation as a lesser-included offense of aggravated assault. Compare N.J.S.A. 2C:11-4b(2) (elements of passion/provocation manslaughter) with N.J.S.A. 2C:12-1b(1) (elements of aggravated assault).

Lastly, we decline to address defendant's asserted claims of the ineffectiveness of counsel, as such claims are best received on a suitable, more expansive, record in a future application for post-conviction relief (PCR). See State v. Precoise, 12+ 9 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We therefore affirm defendant's convictions in all respects.

IV.

As a final matter, we consider defendant's ten-year sentence on a second-degree crime. Because the enhanced sentence, premised upon factors other than recidivism, exceeds the former presumptive term of seven years for a second-degree offense, see N.J.S.A. 2C:44-1(f)(1), we must remand this matter for resentencing in accordance with State v. Natale, 184 N.J. 458, 484, 495-96 (2005). See also Apprendi v. United States, 530 U.S. 466, 490, 120 S. Ct. 2348, 2363, 147 L. Ed. 2d 435, 455 (2000).

Convictions affirmed; remanded for resentencing.

 

The grand jury transcript from 1995 evidently cannot be located, and is not part of this record.

(continued)

(continued)

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A-03264-04T4

July 27, 2006