STATE OF NEW JERSEY v. CHAZ MORGAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3716-03T43716-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHAZ MORGAN,

Defendant-Appellant.

________________________________

 

Submitted January 9, 2006 - Decided January 17, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from a final judgment of the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-04-0832.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Johanna Barba Jones, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Chaz Morgan (defendant) was convicted of various offenses arising out of events that occurred on the night of December 21, 2002. The trial of this matter included the charges brought against co-defendant Kevin Johnson (Johnson), who was convicted of various offenses. In an opinion also filed today, we affirmed the judgment of conviction entered against Johnson. State v. Johnson, Docket No. A-4926-03T4. By way of this opinion, we affirm the judgment of conviction entered against defendant.

In our unpublished opinion in State v. Johnson, we described some of the events that transpired on the evening of December 21, 2002 in the following way:

The jury heard evidence that Nicholas Barone (Barone) attended a party at an Asbury Park club with [defendant] and others on that evening. Eventually, Barone, his girlfriend and also his cousin left the party and returned to Barone's apartment. Before leaving, Barone's cousin invited [de-fendant] to Barone's apartment. [Defen-dant], along with [Johnson], who had not been at the party, later arrived at Barone's apartment in a green Ford Taurus. Soon thereafter [defendant and Johnson], while sitting in the Taurus, observed Barone standing on the sidewalk.

Barone testified that [defendant and Johnson], wearing masks, then pushed him up the stairs into his apartment and demanded money and his safe. [Defendant] disputed this, testifying that he discussed moving the safe with Barone and that Barone invited them into the apartment. [Johnson] did not testify. Once inside, according to Barone, he and [defendant] began to "tussle." Barone's dog (Notorious) attacked [Johnson], who pulled a gun and shot the dog.

Testimony also revealed that [defendant and Johnson] left the apartment with the safe. They departed in the Taurus which [Johnson] drove. A police officer responding to reports of a robbery in progress at Barone's apartment observed the Taurus driving at a high rate of speed, and attempted to cause it to stop. Instead of pulling over, [Johnson] made an evasive right turn, and then drove through two stop signs and a red light. [Defendant and Johnson] later exited the vehicle and ran in separate directions.

Three other officers in an unmarked car observed two men flee from the Taurus, and joined the chase. [Johnson] attempted to climb a fence but got caught, fell onto the street and dropped his gun. When recovered by one of the officers, it was determined that the handgun contained three live rounds and two spent rounds.

Both [defendant and Johnson] were eventually apprehended. According to the police, they both resisted arrest.

[State v. Johnson, supra, at 1-3 (footnotes omitted).]

As a result of these events, a Monmouth County indictment charged defendant with second-degree conspiracy to commit armed robbery and armed burglary, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:18-2; first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree possession of a prohibited weapon or device (hollow point bullets), N.J.S.A. 2C:39-3(f); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree aggravated assault, N.J.S.A. 2C:39-3(f); third-degree terroristic threats, N.J.S.A. 2C:12-3; second-degree eluding, N.J.S.A. 2C:29-2(b); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a).

Judge Paul F. Chaiet presided over a jury trial that took place on October 8, 9, 15, 16, and 17, 2003. The State submitted evidence concerning the events that occurred on December 21, 2002. The State also offered evidence that suggested defendant and Johnson attempted to persuade Barone not to testify or cooperate with the prosecution. Judge Chaiet, however, carefully redacted certain writings that were admitted into evidence and also limited the testimony regarding the redacted statements and other oral statements in such a way as to avoid any indication that defendant may have participated in the making of any of these communications to Barone. We described this evidence in our opinion in State v. Johnson in the following way:

[B]y way of the postcard, the State argued that [Johnson] urged Barone not to testify. There was also testimony that after receiving the postcard, Barone, while incarcerated and awaiting trial on unrelated charges, encountered [Johnson] in the Monmouth County Correctional Institution. [Johnson] asked whether Barone received his message and whether he planned on testifying. Barone said he had not decided.

The judge also admitted into evidence a two-page letter purportedly sent by [Johnson] to Barone which suggested that Barone's bail would be paid if Barone did not cooperate with the State. In the letter, [Johnson] urged Barone to testify that on December 21, 2002 they were arguing about money, and that Barone had commanded Notorious to attack [him]. Barone testified that after he received the letter he again encountered [Johnson] in the jail. [Johnson] asked Barone if he got the letter and whether he was going to testify to the story set forth in the letter. Barone again told [Johnson] that he did not know what he was going to do. Following this meeting [Johnson] continued to approach Barone in the jail, asking for his decision and offering to pay his bail. Prior to trial Barone turned over the postcard and the letter to the prosecutor.

[State v. Johnson, supra, at 8-9.]

At the conclusion of the State's case, Judge Chaiet dismissed the third-degree terroristic threat charge. Defendant, however, was found guilty of second-degree conspiracy, first-degree robbery, second-degree burglary, second-degree eluding, and third-degree resisting arrest. The jury acquitted defendant of the weapons charges. At sentencing, Judge Chaiet merged the conspiracy conviction into the robbery and burglary convictions. He imposed a sixteen-year term of imprisonment on the robbery conviction and a ten-year term of imprisonment on the burglary conviction; pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, it was ordered that defendant must serve 85% of both those terms before becoming eligible for parole. Judge Chaiet also imposed a ten-year term of imprisonment on the eluding conviction and a five-year term of imprisonment on the resisting arrest conviction. All the terms imposed were ordered to run concurrently.

Defendant appealed, raising the following arguments for our consideration:

I. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE WHEN THE TRIAL COURT ALLOWED INTO EVIDENCE THE CO-DEFENDANT'S LETTERS WITHOUT ANY LIMITING INSTRUCTION TO THE JURY (Partially raised below).

II. THE TRIAL COURT ERRED IN ALLOWING THE CO-DEFENDANT'S LETTERS INTO EVIDENCE WITHOUT SUFFICIENT EVIDENCE OF AUTHENTICATION.

III. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT DISREGARDED THE REQUIREMENTS OF RULE 3:15-2(a) AND DENIED DEFENDANT THE OPPORTUNITY TO BE TRIED SEPARATELY (Not raised below).

IV. THE TRIAL COURT'S SENTENCE WAS UNDULY HARSH IN VIEW OF DEFENDANT'S YOUTH, LACK OF ANY PRIOR ADULT CONVICTIONS, AND ACQUITTAL ON ALL GUN POSSESSION CHARGES.

V. THE TRIAL COURT'S IMPOSITION OF A SENTENCE IN EXCESS OF THE PRESUMPTIVE TERM ON THE BASIS OF AGGRAVATING FACTORS THAT WERE NOT DETERMINED BY THE JURY IS UNCONSTITUTIONAL UNDER BLAKELY V. WASH-INGTON.

After carefully reviewing the record, we find these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding the admission into evidence of the communications between Johnson and Barone, and the sentence imposed.

The record reveals that Judge Chaiet carefully considered the evidence of Johnson's communications with Barone so as to avoid any prejudice to defendant. Since the evidence offered as a foundation for the admission of the postcard and the letter suggested only that these communications were made by Johnson, Judge Chaiet not only precluded any testimony that would have suggested that these statements were also made or joined in by defendant, but also patiently examined and required the redaction of any statements within those written communications that would have suggested that Johnson was also speaking for defendant or anyone other than himself. Following the redaction of these documents, counsel for defendant not only did not object, or request an immediate jury instruction regarding the use to which the jury could put this evidence, or seek any further limitation on the evidence, but in fact expressed his appreciation for the judge's redaction of the documents:

[DEFENSE COUNSEL]: I very much appreciate your having gone over this, Judge.

THE COURT: Do you have any objection to the Court's conclusions?

[DEFENSE COUNSEL]: Not at all.

Following this, Judge Chaiet directed the prosecutor regarding his examination of Barone in order to avoid any prejudice to defendant as the result of the admission of the written statements, even in redacted form, stating:

So, prosecutor, you know, certainly I don't know how you intend to handle these statements with your witness, but there should be no reference to those excised portions of the statements. All right. And basically, your questions should be phrased as to, you know, eliminate reference to [defendant].

As can be seen, the evidence regarding the alleged pre-trial attempts to influence Barone was offered against Johnson -- and not defendant -- and there was nothing about what was admitted that suggested defendant's participation in or adoption of those communications. As a result, we not only find that Judge Chaiet correctly ruled upon the evidence issues raised by these written statements, as more fully discussed in our opinion in State v. Johnson, but also that defendant was not prejudiced by the admission of this evidence because the statements were redacted and any testimony or argument which suggested that defendant participated in the making of these communications or adopted them as his own was barred.

Lastly, we observe that defendant contends he was improperly sentenced, claiming that Judge Chaiet relied upon facts beyond those determined by the jury in imposing a term of imprisonment in excess of the presumptive term, citing Blakely v. Washington, 524 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). While this matter was on appeal, our Supreme Court decided State v. Natale, 184 N.J. 458 (2005), State v. Abdullah, 184 N.J. 497 (2005), and State v. Franklin, 184 N.J. 516 (2005). In those decisions, the Court "excised the presumptive terms from the Code" so that our sentencing laws would no longer violate the Sixth Amendment concerns announced in Blakely. While this sea change requires, in many cases, the re-sentencing of defendants whose cases were on direct appeal at the time of these decision, State v. Natale, supra, 184 N.J. at 495, the Court also observed that where only aggravating factors relating to the defendant's prior criminal record caused the sentencing judge to impose a sentence greater than the presumptive term, then re-sentencing is not required, State v. Abdullah, supra, 184 N.J. at 506 n.2. Indeed, in such circumstances, the requirements of Blakely are not implicated. Accordingly, since Judge Chaiet found and applied only the aggravating factors of the risk of reoffense, N.J.S.A. 2C:44-1(a)(3), and the need to deter, N.J.S.A. 2C:44-1(a)(9), we conclude that re-sentencing is not required.

 
Affirmed.

(continued)

(continued)

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A-3716-03T4

January 17, 2006