STATE OF NEW JERSEY v. STANLEY CARTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4674-03T44674-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STANLEY CARTER,

Defendant-Appellant.

__________________________________

 

Submitted December 21, 2005 - Decided April 3, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Mercer County,

No. 03-02-229.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Gilbert G. Miller,

Designated Counsel, of counsel and

on the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Paul H. Heinzel,

Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser-included offense of murder, N.J.S.A. 2C:11-3a(2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. At sentencing, the trial court merged the unlawful purpose conviction into the aggravated manslaughter conviction and sentenced defendant to twenty-five years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. It also imposed a consecutive five-year term for unlawful possession of a handgun.

Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.

On appeal, defendant has raised the following the contentions:

POINT I DEFENDANT'S STATEMENT WAS ADMITTED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

POINT II A MISTRIAL SHOULD HAVE BEEN DECLARED BECAUSE OF PREJUDICIAL REMARKS OF THE PROSECUTOR DURING HIS OPENING STATEMENT.

POINT III THE TRIAL COURT INCORRECTLY FAILED TO ADMIT HEARSAY TESTIMONY PURSUANT TO N.J.R.E. 803(c)(1) AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE. U.S. CONST., AMEND VI; U.S. CONST., AMEND. XIV; N.J. CONST., ART. I, PAR. 10.

POINT IV THE COURT ERRONEOUSLY DENIED DEFENDANT'S REQUEST FOR A WADE HEARING.

POINT V DEFENDANT'S SENTENCE IS UNCONSTITUTIONAL.

POINT VI DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

At approximately 11:00 p.m. on May 7, 2002, Richard Vaught, known as Worm, was shot to death in Trenton, New Jersey, near the intersection of Chestnut and Greenwood Avenues. The State contended that Stanley Carter, known as SP, was the shooter. The State presented evidence that Carter was in the back seat of a Ford Explorer being driven by Maurice Norwood. Two women were also in the back seat, Sharon Kasey and Shirell Smith. In the front passenger seat was Taareef Robinson, known as Slick. The State's theory was that Carter shot Vaught in revenge, Vaught having several weeks earlier robbed Carter and Norwood. Defendant contended he had nothing to do with the shooting and was too busy consummating a drug deal with Kasey and Smith to have pulled out a gun and shot Vaught. Defendant argued that Norwood shot Vaught in retaliation for the earlier robbery.

Detective Edgar Rios of the Trenton Police Department was off-duty at the time but working nearby as a security guard when he heard three gunshots. He was familiar with Sharon Kasey and had noticed her walking in the vicinity. Later, when he was called in to participate in the investigation, he located Kasey to learn if she had seen anything. Based upon his conversation with Kasey, he sought and eventually located defendant at 310 South Clinton Avenue, in the apartment of Paula Chapman.

Defendant was placed under arrest on an outstanding warrant for an unrelated matter and taken to the police station for questioning. At the station, Rios advised defendant of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and defendant signed a written waiver of those rights. Defendant told Rios he had heard of the shooting but denied being involved. He would not say how he had heard of the shooting and stated he had nothing further to say. Through his investigation, Rios had learned that the shooter had been wearing a Philadelphia 76ers basketball jersey. Detective Rios told defendant he was going to be charged with murder and that his Philadelphia 76ers basketball jersey was going to be confiscated. Rios testified at the trial that defendant was wearing such a jersey when he was placed under arrest. Rios stood up to leave the interview room to begin the necessary paperwork. At that point, defendant said he would give a statement. In that statement, defendant said he, Slick and two women had been riding in a car driven by Norwood when they passed Vaught; defendant identified Norwood as the shooter.

The police returned to Ms. Chapman and received permission to search her apartment. In that search, they located a black .38 caliber Smith and Wesson five-shot revolver, with two bullets in its cylinder. Because the bullet that killed Vaught had fragmented, ballistics analysis could not establish that it had been fired from this gun; the State's expert witness, Lieutenant Randolph Toth of the State Police, could only say that while the fatal bullet shared certain characteristics with those fired from the revolver, the results were inconclusive.

I

There are three aspects to defendant's argument relating to the admissibility of his statement. The first is whether defendant's words to the effect that he had nothing further to say constituted an invocation of his right to remain silent. The New Jersey Supreme Court dealt with this question in State v. Johnson, 120 N.J. 263 (1990). In that case, defendant was charged with two counts of murder. Id. at 267. He was questioned for approximately two hours and during the interrogation repeatedly stated that he could not talk any further about what had occurred. Id. at 272. The police persisted, however, and eventually, as the questioning continued, defendant provided a full confession, which was admitted at his trial. Id. at 272-73. The Supreme Court reversed his conviction, ruling that the police had not scrupulously honored defendant's right to remain silent. Id. at 285, 292.

Custodial interrogation of a suspect must cease if the suspect 'indicates in any manner, at any time [prior to or] during questioning that he wishes to remain silent . . . . At this point he has shown that he intends to exercise his Fifth-Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.'

[Id. at 281 (quoting Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723).]

Once a defendant has invoked the right to remain silent, that right must be scrupulously honored, and questioning can only resume if a defendant is again advised of his Miranda rights. Id. at 282. A defendant is not required to use particular language to invoke his right to remain silent, and if the police are uncertain if that is his intent, they may only ask questions designed to clarify that issue. Id. at 283.

The situation presented here is far different from that at issue in Johnson, in which the defendant repeatedly said he could not talk any further. We recognize, however, that defendant's statement that he had nothing further to say is susceptible to two constructions: that asserted by the police--that defendant had told them all he knew--and that asserted by defendant--that he was invoking his right to remain silent. Johnson makes clear, however, that that very ambiguity obligated the police to clarify defendant's intent. Ibid.

That, however, does not resolve the issue but necessitates consideration of the question whether defendant was interrogated after invoking his right to remain silent. We are satisfied, after reviewing the transcript of the Miranda hearing, that no such interrogation took place, and thus admission of defendant's statement did not violate his right to remain silent.

The concept of interrogation, of course, goes beyond express questioning; it encompasses "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 308 (1980). Any "practice that the police should know is reasonably likely to evoke an incriminating response from a suspect [] amounts to interrogation." State v. Cryan, 363 N.J. Super. 442, 452 (App. Div. 2003) (quoting State v. Ward, 240 N.J. Super. 412, 418 (App. Div. 1990)). Interrogation "extend[s] only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Ibid. This is so because "the police surely cannot be held accountable for the unforeseeable results of their words or actions." Ibid.

Informing defendant that he was to be charged with murder and weapons offenses clearly falls within the procedural statements permitted under Innis. Nor do we consider that Detective Rios should be charged with forecasting that his statement that defendant's basketball jersey was going to be confiscated would elicit an incriminating response from defendant.

Defense counsel argued at the Miranda hearing that the statement was impermissible because defendant was, in fact, not wearing that jersey at the time. That assertion was contradicted by the testimony of Detective Rios and during the course of the proceedings, defendant put forth no evidence to support his counsel's statement and rebut the testimony of Rios.

Finally, we deem defendant's statement, which was prefaced by his remark, "Let me tell you what happened," to constitute a voluntary initiation on his part of conversation with the police. In such an instance, the police are not required to readminister the Miranda warnings. State v. Fuller, 118 N.J. 75, 85 (1990). We are satisfied defendant's statement was properly admitted at trial.

II

We reject defendant's second contention--that the trial court erred in denying his motion for a mistrial after the prosecutor's opening statement during which the prosecutor, in relating to the jury the facts the State intended to prove, told the panel that when defendant was located in Ms. Chapman's apartment, they took him into custody "on an unrelated issue." Defendant repeats the argument he made to the trial court, that this statement was highly prejudicial to defendant. The argument before the trial court developed that defendant had been taken into custody on the basis of an outstanding warrant from a nearby municipal court for $525; defense counsel argued that the prosecutor's statement opened the door to the jury speculating that defendant was wanted on other serious offenses, similar to those at issue in the present trial. The prosecutor responded that he had made the statement simply to show the jury that the police had not acted arbitrarily in arresting defendant.

The trial court denied the mistrial application and gave the following curative instruction:

Ladies and gentlemen, in the opening statement of the State, a statement was made concerning Mr. Carter being arrested on warrants on an unrelated matter. I'm advising you that you're not to draw any conclusions from the fact there may have been warrants outstanding in an unrelated matter against Mr. Carter. That was only allowed to be presented to you to explain the police conduct in arresting Mr. Carter, that is, that they were acting under the auspices of a legal document. You're not to draw any other conclusion from that fact.

The decision whether to grant the extraordinary remedy of a mistrial rests in the sound discretion of the trial court. State v. Winter, 96 N.J. 640, 647 (1984). We are unable to perceive an abuse of that discretion, either in the decision relating to the mistrial itself or in the formulation of a curative instruction.

III

Prior to the trial getting underway, defense counsel sought a ruling from the court that it could admit into evidence a statement from Nesshea Willis to Police Officer David Salvatore. Officer Salvatore was the first to respond to the scene of the shooting. Approximately ten minutes after he arrived on the scene, he was approached by Ms. Willis, who told him that she lived at 8 Hollywood Avenue. Officer Salvatore placed this as approximately thirty feet from the shooting. Ms. Willis told Officer Salvatore that she had been sitting on the front porch of her home and saw a dark-colored Chevrolet Cavalier drive up her street. She then heard three gunshots. She said the same car then drove up her street again at a high rate of speed. She told Officer Salvatore that the driver was a black male who had a gun in his left hand and that he seemed to be trying to get rid of it.

Neither the State nor the defense could locate Ms. Willis at the time of defendant's trial, and defense counsel sought to introduce Ms. Willis's statement under N.J.R.E. 803(c)(1), which incorporates the present sense impression exception to the hearsay rule. N.J.R.E. 803(c)(1) makes admissible "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." The trial court conducted a Rule 104 hearing, at which Officer Salvatore testified, and the court reviewed photographs of the area described in Ms. Willis's statement. The trial court concluded that the statement was inadmissible.

We are satisfied the trial court was entirely correct in this regard. One of the predicate requirements to admissibility under this rule is that the statement be made "while or immediately after" the declarant witnessed the event. Here, while Officer Salvatore testified that he arrived at the scene approximately one minute after receiving the dispatch and also testified that Ms. Willis approached him approximately ten minutes after he arrived at the scene, the record is silent as to how long an interval occurred between the shooting and Officer Salvatore being dispatched to the scene. It is thus impossible to conclude that Ms. Willis made her statement to Officer Salvatore "immediately after" having heard the shots.

Further, as the trial court noted, the lateness of the hour, the darkness of the scene and the plausibility of the assertion that Ms. Willis could have perceived a gun in the hand of a driver of a speeding car were all appropriate subjects upon which the State would have cross-examined her if she testified in the presence of the jury. Admitting her statement through Officer Salvatore would deprive the State of that cross-examination.

Finally, we are unable to agree with defendant's assertion that Ms. Willis's statement should have been admitted under the principle of fundamental fairness, recognized in State v. Bunyan, 154 N.J. 261 (1998). To admit a hearsay statement under that principle, there must be a showing that the statement carries "the clear indicia of reliability" and that to exclude the statement would make defendant's trial fundamentally unfair. Id. at 271. Further, while the Court recognized the existence of the principle of fundamental fairness in Bunyan, it has also continued to stress that a defendant does not have an "unlimited right to present relevant evidence." Ibid. It has also continued to stress that New Jersey does not recognize the residual hearsay exception contained in the Federal Rules of Evidence. State v. Brown, 170 N.J. 138, 152 (2000).

IV

Defendant's next contention is that the trial court erred in denying his request for a Wade hearing, United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). We have reviewed the transcript of the proceedings in which defendant requested such a hearing. We are satisfied defendant failed to establish that "law-enforcement authorities used impermissibly-suggestive identification procedures . . . result[ing] in a 'very substantial likelihood of irreparable misidentification.'" State v. Long, 119 N.J. 439, 493 (1990) (quoting State v. Madison, 109 N.J. 223, 232 (1988)). The trial court's decision to deny a Wade hearing in such a context was correct.

V

The remainder of defendant's arguments are centered upon his sentence. A defendant convicted of aggravated manslaughter is subject to a term of imprisonment between ten and thirty years. N.J.S.A. 2C:11-4c. The trial court sentenced defendant to twenty-five years in prison, five years beyond the mid-range. In doing so, the trial court cited aggravating factors 1, 6 and 9. N.J.S.A. 2C:44-1a(1), (6) and (9). Aggravating factor one, however, the nature and circumstances of the offense, does not fall within the so-called recidivist exception recognized both in Blakely v. Washington, 542 U.S. 296, 301-02, 124 S. Ct. 2531, 2536-37, 159 L. Ed. 2d 403, 412-13 (2004), and State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). Further, the trial court gave no justification for its decision to impose a consecutive term for the conviction for unlawful possession of a weapon. We are satisfied defendant must be resentenced.

This resentencing will afford the opportunity to amend the judgment of conviction which imposes upon defendant two separate $30 penalties under N.J.S.A. 2C:43-3.3, payable to the Law Enforcement Officers Training and Equipment Fund ("LEOTEF"). This statute provides that "any person convicted of a crime shall be assessed a penalty of $30." N.J.S.A. 2C:43-3.3a. This language is clearly distinct from that employed by the Legislature in N.J.S.A. 2C:43-3.1a(1), in which it assessed a penalty of $100 payable to the Victims of Crime Compensation Board ("VCCB") "for each . . . crime for which [defendant] was convicted." Following merger, defendant was convicted of two crimes, and two VCCB penalties were properly imposed. Under the language adopted by the Legislature in N.J.S.A. 2C:43-3.3, however, only one LEOTEF penalty may be assessed under one indictment, no matter how many convictions may result from that indictment.

Defendant's convictions are affirmed; the matter is remanded to the trial court for resentencing.

 

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A-4674-03T4

April 3, 2006