STATE OF NEW JERSEY v.KRISTINA EADDY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5219-03T15219-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KRISTINA E. EADDY,

Defendant-Appellant.

________________________________________________________________

 

Argued September 27, 2006 - Decided December 22, 2006

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

04-0456-1.

Richard E. Mischel argued the cause for appellant

(Mischel & Horn, attorneys; Mr. Mischel,

on the brief).

Steven E. Braun, Chief Assistant Prosecutor,

argued the cause for respondent (James F.

Avigliano, Passaic County Prosecutor, attorney;

Mr. Braun, of counsel and on the brief).

PER CURIAM

Defendant Kristina E. Eaddy appeals from a judgment of conviction entered on April 16, 2004 after a jury found her guilty of first degree attempted murder, N.J.S.A. 2C:5-1, 11-3 and 2-6 (Count 1); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) and 2-6 (Count 2); third degree aggravated assault, N.J.S.A. 2C:12-1b(2) and 2C:2-6 (Count 3); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 and 2-6 (Count 4); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b and 2-6 (Count 5); and third degree purchase of a firearm without a permit, N.J.S.A. 2C:58-3a, 2C:39-10a and 2-6 (Count 6). After the appropriate mergers and dismissals, defendant was sentenced on Count 1 to a term of ten years subject to 85% parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, (NERA), and a concurrent term of ten years on Count 4.

These charges arose out of a shooting that occurred on July 17, 1999 at about 9:00 p.m. in Paterson. The shooting victim, Shakesa Sturdivant, told the ambulance personnel who treated her at the scene that two people were involved in the shooting, her ex-boyfriend Dante Williams and his present girlfriend, defendant. Sturdivant identified defendant as the shooter. She also told Officer Audrey Cooley, who responded to the scene within minutes after the shooting, that defendant shot her because defendant did not like her. On August 4, 1999, Sturdivant gave a statement to police and identified defendant as the shooter from a photo.

Williams was arrested in Baltimore, Maryland, on October 11, 2000 after being stopped for a motor vehicle violation. He was tried in the spring of 2002 and testified that defendant was the shooter. At Williams' trial, Sturdivant testified that she saw both Williams and defendant in the vehicle from which the shots came, but she did not know who fired the gun. At defendant's trial, however, Sturdivant testified that she was positive defendant had fired the gun. Sturdivant was extensively cross-examined on this point but did not waver in her assertion that it was defendant who shot her.

At defendant's trial, Sturdivant testified that on the day of the shooting she was driving in Paterson and noticed Williams drive past her but did not see anyone else in his Ford Expedition. When she got out of her car and walked up the block to look for her cousin, she saw Williams drive by a second time with defendant in the front passenger seat. Williams stopped and spoke to Sturdivant and she was able to see defendant clearly in the front passenger seat. Sturdivant testified that she saw defendant "reach [ ] down . . . forward, like she was reaching for something and she came back up, and I felt very uncomfortable and I didn't know what was about to happen, so I walked away and started to walk to my car." As Sturdivant got in her car, Williams quickly backed up his Expedition, blocking her car so she could not drive away. She saw defendant looking at her. "She was pointing a gun at me and she started shooting at me." The gun fired four or five times. Sturdivant opened the passenger door and dove out onto the sidewalk.

Johnny Mickens was an eyewitness to the shooting. He testified that on the night of July 17, 1999, he was walking in Paterson when he turned the corner of East 23rd Street and Park Avenue and saw Sturdivant sitting on the driver's side of her car. An Expedition was double-parked next to Sturdivant's car with the windows of the two cars lined up. A man was in the driver's seat of the Expedition and a woman was in the passenger seat. Mickens knew Sturdivant but did not know either of the Expedition's occupants.

Mickens caught a "quick glimpse" of the wrist and hand of a black person sticking out the open passenger side front window. Shots were fired by that person at Sturdivant's car. Mickens saw Sturdivant's car roll backwards while Sturdivant was trying to get out of the car. He saw that Sturdivant was bleeding, and he and Quasheema Miller rushed to help her as the Expedition drove off. Mickens later gave a statement to police indicating that it "looked like a man's arm" sticking out of the Expedition just before the shots were fired.

Sturdivant and defendant had a history of animosity dating back to 1997 when the two fought over Williams. Sturdivant was angry with Williams about his relationship with defendant, and had written letters to him in which she threatened Williams that if he did not give her money, she would get him "in trouble with the police." At defendant's trial, Sturdivant testified that the letters were "childish and . . . spiteful."

In this appeal, defendant argues:

POINT ONE

THE PROSECUTOR'S USE OF CONFLICTING THEORIES IN SEPARATE CRIMINAL PROCEEDINGS AGAINST CO-DEFENDANTS AND OTHER PROSECUTORIAL MISCONDUCT VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL

POINT TWO

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR NEW TRIAL ON THE GROUND THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, AND IN DENYING APPELLANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL

POINT THREE

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT THE VICTIM'S HEARSAY STATEMENTS TO THE POLICE AS EXCITED UTTERANCES

POINT FOUR

ADMISSION OF THE VICTIM'S TESTIMONY THAT APPELLANT ENGAGED IN A PRIOR PHYSICAL FIGHT VIOLATED N.J.R.E. 404B, DENYING APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT FIVE

THE ABBREVIATED CHARGE ON LESSER INCLUDED OFFENSES OMITTING ACCOMPLICE LIABILITY INSTRUCTIONS CONSTITUTED PLAIN ERROR. (Not Raised Below)

POINT SIX

THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS

POINT SEVEN

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND PATENTLY ILLEGAL

I

Defendant first argues that the prosecutor used conflicting theories in the separate criminal proceedings against Williams and herself. She maintains that her conviction must be reversed because, at Williams' trial, the State proceeded on the theory that Williams was the shooter, while at her trial, the State alleged that she was the shooter.

During pre-trial hearings, defendant moved to dismiss the indictment or, alternatively, dismiss the attempted murder and aggravated assault charges because the State was proceeding on conflicting theories. Defendant argued that at Williams' trial, Sturdivant never directly stated that defendant was the shooter but, in her proposed testimony for defendant's trial, she identified defendant as the shooter.

The trial court denied the motion to dismiss, relying on State v. Roach, 146 N.J. 208, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996), in which the "Supreme Court permitted a prosecutor to argue different plausible interpretations of conflicting evidence." The trial court later amplified its ruling, noting that under Roach, a prosecutor "is entitled to present the strongest case against each defendant provided the State has not compromised that evidence or engaged in representations on which the courts have relied or which have prejudiced the defendant." The court noted further that in the Williams trial, Sturdivant was "equivocal" in identifying Williams as the shooter, although she did identify defendant as the shooter at the scene. In either case, defendant and Williams were in the Expedition from which the shots were fired and the court concluded that the evidence was subject to different interpretations, but there was nothing inconsistent in the State's theory at each trial.

In his opening statement at defendant's trial, the prosecutor noted that defendant could be convicted either as the shooter, based on the fact that Sturdivant would testify that she saw defendant shoot her, or as an accomplice to Williams. Defense counsel, in his opening statement, characterized the State's case as a "schizophrenic prosecution."

In his closing argument, defense counsel characterized the State's use of alternate theories as "flip-flopping." After pointing to a series of inconsistencies in Sturdivant's testimony, defense counsel argued to the jury that Sturdivant's testimony should not be believed.

After the verdict, defendant moved for a new trial or judgment notwithstanding the verdict (JNOV). Although the trial court denied the motions, it noted that it was "deeply troubled" by the State's inconsistent factual theories and the "flip-flopping" over who shot Sturdivant. It found, however, that under Roach, a new trial was not warranted. The court noted further that all the inconsistencies were presented to the jury for their consideration.

In Roach, supra, 146 N.J. at 216-20, under circumstances similar to the present case, the State argued at the first trial of two co-defendants that they were the shooters. At the second trial, the State argued that the third co-defendant was either the shooter or an accomplice. Id. 220-23. The Supreme Court noted that the State did not "destroy[] the credibility of one witness to convict one defendant and then use[] that same witness to convict a co-defendant for the same crime," nor did the State "improperly argue[] facts that were unsupported by the evidence," or convict the defendant "with a factual determination that [it] had formally disavowed at other trials." Id. at 220-21. The Court found that the prosecutor did not argue facts not in evidence, make inflammatory comments or make "unsupportable arguments to try to mislead the jury" in either trial. Id. at 221. Rather,

[t]he prosecutor properly presented different, plausible interpretations of the conflicting evidence. Although the prosecutor argued in the . . . separate trials of the co-defendants that Jackson and Wright were the shooters, the evidence did not conclusively establish that Jackson and Wright were the actual shooters. The evidence supported the differing inferences about defendant's role in the crimes. As a result, the prosecutor did not ignore his duty to seek justice nor did he pursue a tactic compromising the integrity of the courts in order to obtain a conviction. Within the bounds set by the available inferences to be drawn from the evidence, the prosecutor is entitled to present the strongest case against each defendant provided the State has not compromised that evidence or engaged in representations on which the courts have relied or that have prejudiced the defendant.

[Id. at 221-22.]

Here, the State prosecuted Williams and defendant in a manner similar to the prosecutions in Roach. At Williams' trial, the State proceeded on a theory that Williams was the shooter, based on the testimony of Sturdivant, Mickens, the emergency personnel at the scene and the police officer who interviewed Sturdivant after the shooting.

In our review of the record before us now, we are satisfied that there was sufficient evidence to support both arguments. The prosecutor presented both cases "[w]ithin the bounds set by the available inferences to be drawn from the evidence," Roach, supra, 146 N.J. at 222, and neither argued facts not in evidence nor took a position disavowed at Williams' trial. Moreover, the inconsistencies in Sturdivant's testimony in the two trials were exhaustively cross-examined and the jury was well aware of all of the discrepancies. As in Roach, the trial court here instructed the jury to decide the case on the evidence and not the remarks of counsel. Further, as in Roach, the jury sought a re-charge on accomplice liability, indicating that defendant's convictions may have been based on accomplice rather than principal liability.

Defendant argues that the prosecutor improperly implied to the jury that she was in the Expedition when Sturdivant and Williams met at the Clifton Pathmark prior to the shooting, and that she was in the car from that point until the shooting. During Sturdivant's testimony, the prosecutor posed a series of questions aimed at determining if anyone other than Williams was in the Expedition when he and Sturdivant met at the Clifton Pathmark before the shooting. The court excused the jury and told the prosecutor that it was inappropriate to continue pursuing that line of questioning given the fact that Sturdivant clearly stated that no one other than Williams was inside the vehicle. The court told the prosecutor to be guided accordingly as the trial progressed.

Nevertheless, during his summation, the prosecutor stated that "they" saw Sturdivant park her car in Paterson and that "they" knew where Sturdivant had parked her car. The trial court immediately excused the jury and admonished the prosecutor because he "impermissibly commented upon other people being in the vehicle," a "flagrant violation[] of evidential rulings that the Court made." The prosecutor argued that the reference to "they" was "inadvertent." The court rejected that argument and defendant moved for a mistrial. Although the court found that the prosecutor's comments were not supported by the record and that he attempted to mislead the jury, it denied the motion, finding that the prosecutor's comments had been stopped "quick[ly] enough" and that a curative instruction would resolve the misstatement.

When the jury returned, the court gave the following instruction:

Ladies and gentlemen, at this time I'm compelled to remind you that you'll only consider the evidence in this case which has been presented by the testimony of witnesses or that has been admitted into evidence, whether there are documents or other evidence that's been admitted by the Court in this case.

The comments by the attorneys are not controlling in this regard. And it is your recollection of the evidence and what is proven by the evidence, if anything, that shall guide you in your determination as jurors as to what the facts are.

With regard to the immediate comments of the Prosecutor that preceded my having sent you out of here, from the point that the Prosecutor was commenting upon the vehicles leaving the [Pathmark] to the point where they arrived in Paterson, you'll disregard those comments. Again, the comments of the attorneys are not evidence in this case.

In determining whether a prosecutor's comments deprived the defendant of a fair trial, we must

consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn properly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them."

[State v. Daniels, 182 N.J. 80, 96-97 (2004) (quoting State v. Smith, 167 N.J. 158, 182 (2001)).]

Here, defense counsel objected immediately and the court gave a strong and specific curative instruction. We are satisfied that the prosecutor's remarks did not deprive defendant of a fair trial. See State v. Papasavvas, 163 N.J. 565, 616 (holding that prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive the defendant of a fair trial), modified on other grounds, 164 N.J. 553 (2000).

II

Mickens testified that he caught a "quick glimpse" of the wrist and hand of a black person sticking out of the open front passenger window of the Expedition. Mickens later gave a statement to police indicating that it "looked like a man's arm" sticking out of the Expedition just before the shots were fired.

Defendant moved for acquittal at the conclusion of the State's case, on the ground that the State failed to prove either (1) that defendant actually shot Sturdivant, given Mickens' testimony, or (2) that she was Williams' accomplice. The court denied the motion, finding that Sturdivant testified unequivocally that defendant was the shooter and that, given the inferences due to the State, judgment of acquittal could not be granted.

After the verdict, defendant moved for a new trial or JNOV, again arguing that the State failed to prove that defendant either shot Sturdivant or was Williams' accomplice. Defendant maintained then, as she does now, that the State's inconsistent theories on who committed the crime in the two trials require that she be granted a new trial. The trial court denied the motion, noting that none of defendant's arguments warranted setting the verdict aside.

The standard for deciding a motion for acquittal at the close of the State's case and for deciding a motion for a new trial on the ground that the verdict was against the weight of the evidence is the same. R. 3:18-1. The trial court must (1) determine whether "a reasonable jury could find guilt of the charge beyond a reasonable doubt," State v. Reyes, 50 N.J. 454, 459 (1967); and (2) review the State's evidence, both direct and circumstantial, in its entirety and give "the State the benefit of all its favorable testimony as well as the favorable inferences which reasonably could be drawn" from that testimony. State v. Josephs, 174 N.J. 44, 80 (2002) (quoting State v. Reyes, supra, 50 N.J. at 459). In considering the motion, "the trial [court] is not concerned with the worth, nature or extent . . . of the [State's] evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). No consideration is given to any evidence presented by defendant. State v. Gora, 148 N.J. Super. 582, 596 (App. Div.), certif. denied, 74 N.J. 275 (1977).

We apply the same standard in our review of the denial of a motion for acquittal or for a new trial. State v. Kittrell, 145 N.J. 112, 130 (1996); State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.), certif. denied, 144 N.J. 587 (1996). We have carefully considered the extensive record in this case and we are satisfied that there was sufficient evidence for the jury to find defendant guilty as charged.

Although Mickens testified that he saw a man's arm sticking out of the window of the Expedition, Sturdivant, herself, testified unequivocally that it was defendant who shot her. Moreover, the jury was presented with all of the inconsistencies in Sturdivant's prior statements and had the opportunity to assess her credibility. Given the evidence presented, the jury may well have concluded that Williams was the shooter and defendant was his accomplice. In either case, defendant's criminal liability is the same. State v. Josephs, 174 N.J. 44, 92-93 (2002).

Defendant further argues that the trial court mistakenly charged the jury on Count 5, possession of a weapon without a permit to carry, when it stated that "there is evidence by way of a stipulation that a search of the records was made by the New Jersey State Police and that there is no record of this defendant ever having made such an application and obtaining such a permit." Defendant maintains that there was insufficient evidence that she possessed the handgun and that Count 5 should have been dismissed or, alternatively, she should be granted a new trial or judgment of acquittal.

Count 5 (unlawful possession of a weapon) was merged into Count 4 (possession of a weapon for an unlawful purpose) at sentencing, thus her conviction on Count 5 is of no consequence. We need not, therefore, address the argument further. See State v. Williams, 298 N.J. Super. 430, 435 (App. Div. 1997) (holding that there is no need to consider an appeal from a sentence when the conviction is merged into another), certif. denied, 156 N.J. 407 (1998)); State v. Bryant, 288 N.J. Super. 27, 40 (App. Div.), certif. denied, 144 N.J. 589 (1996).

III

Defendant's evidentiary arguments focus on the admission of Sturdivant's statements to the police at the scene as excited utterances, and the admission of evidence of her fights with Sturdivant on two occasions in 1997.

The trial court addressed the admissibility of Sturdivant's statements to police at the scene in a pre-trial hearing. Officer Cooley testified that she responded to the scene within minutes of the shooting and talked with Sturdivant about seven minutes after she arrived at the scene. Sturdivant was in the ambulance when Cooley questioned her. Sturdivant "was upset; she was hysterical; she had been crying; [and] she was in pain." Cooley asked who shot her and Sturdivant responded that "Christina Eabby [sic]" shot her because "Eabby [sic]" did not like her. When Cooley asked if anyone else was involved, Sturdivant identified Williams.

To qualify as an excited utterance, a statement must (1) "relat[e] to a startling event or condition;" (2) be "made while the declarant was under the stress of excitement caused by the event or condition;" (3) be made "without opportunity to deliberate or fabricate," State v. Branch, 182 N.J. 338, 365 (2005) (quoting N.J.R.E. 803(c)(2)); and (4) be made within a reasonable time after the startling event. State in the Interest of J.A., 385 N.J. Super. 544, 551-52 (App. Div. 2006). Sturdivant's statements to Cooley were clearly admissible as excited utterances.

Defendant also contends that the trial court erred in admitting evidence of Sturdivant's fights with defendant in 1997. Defendant did not object to Sturdivant's testimony that on two occasions in 1997, Williams and defendant appeared at Sturdivant's home and Sturdivant and defendant wound up punching and yelling at each other. After Sturdivant's testimony regarding the fights, the trial court gave the following limiting instruction:

You heard some testimony today relating to what's claimed to be the history of the parties[,] [i]n evidence that is admissible[,] not to prove that someone committed any type of bad act or crime in the past. But it's admissible only for the limited purpose of establishing the relationship between the parties, proof of motive, intent, knowledge and identity where those are relevant in the case.

The court elaborated on this instruction at the end of the trial.

Defendant now argues that the testimony violated N.J.R.E. 404(b), which precludes evidence of

[o]ther crimes, wrongs or acts . . . to prove the disposition of a person in order to show that [she] . . . acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Since this argument was not presented at trial, we must apply the plain error rule. R. 2:10-2.

In State v. Cofield, 127 N.J. 328, 338 (1992), the Court articulated a four part test by which to assess the admissibility of bad acts evidence: (1) the evidence must be relevant to a material issue; (2) it must be similar in kind and reasonably close in time to the offense charged; (3) it must be clear and convincing; and (4) its probative value must not be outweighed by its apparent prejudice. See also State v. Koskovich, 168 N.J. 448, 483 (2001); State v. Fortin, 162 N.J. 517, 529 (2000).

Here, the evidence was clearly admissible to show motive or intent and was, therefore, material. Koskovich, supra, 168 N.J. at 480-81 (citing State v. Covell, 157 N.J. 554, 565 (1999)).

The State proceeded on the theory that defendant shot Sturdivant because of the animosity between the two over Williams. Although the fights occurred two years prior to the shooting, they were within the context of Williams' relationship with both women and, therefore, reasonably close in time to the shooting. State v. Stevens, 115 N.J. 289, 295-96 (1989) (finding prior incidents occurring two and one-half years before the crime were admissible); State v. Ramseur, 106 N.J. 123, 267 (1987) (finding that a prior bad act committed one and one-half years prior to the crime was not too remote to preclude admission).

Moreover, the fights were sufficiently similar to the shooting, in that they evidenced hostility between the two women, to provide a "logical connection between [the bad acts evidence] and the crimes charged." Koskovich, supra, 168 N.J. at 485.

The probative value of the fight evidence outweighed the prejudicial effect in that it established the hostility between Sturdivant and defendant and a motive for the shooting. All four prongs of the Cofield test were met, and we are satisfied that the fight evidence was properly admitted. There was no error in admitting the evidence, much less plain error.

IV

Defendant maintains that the jury charges were so deficient as to require a new trial. Initially, we note that defendant did not object to the jury charge as required by R. 1:7-2. Consequently, we review the instructions only for plain error, R. 2:10-2. We are reluctant "to reverse on the grounds of plain error when no objection to [the] charge [was] made" and the trial court was not given an opportunity to cure the alleged defect. State v. Weeks, 107 N.J. 396, 410 (1987). Where there is a failure to object, we presume that the instructions were adequate, State v. Macon, 57 N.J. 325, 333 (1971), and that trial counsel did not perceive that any prejudice would result, State v. Wilbely, 63 N.J. 420, 422 (1973).

Plain error, in the context of a jury charge, is [a] "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

In determining the propriety of the jury instructions, we examine the entire charge to determine whether it was ambiguous or misleading in the context of the trial. State v. Hipplewith, 33 N.J. 300, 317 (1960).

Defendant maintains that "[w]hile the trial judge provided an extensive accomplice charge in conjunction with his instructions on attempted murder, he did not provide complete accomplice instructions when charging on the lesser included counts." She argues that the court merely prefaced the lesser included instructions with a comment that the "prior charge on accomplice liability applied to each of the aggravated assault charges." Defendant argues that

[t]he problem with taking this shortcut is that it omitted any reference to the requirement that to find [defendant] guilty of accomplice liability on any of the lesser included charges, the jury must find that [defendant] acted as [Williams'] accomplice with the purpose that the specific crime(s) charged be committed.

"When a defendant might be convicted as an accomplice, the trial judge must give clear, understandable jury instructions regarding accomplice liability." State v. Walton, 368 N.J. Super. 298, 306 (App. Div. 2004). An accomplice liability charge "is inextricably linked to the jury charge for lesser-included offenses if such offenses are submitted to [a] jury." Ibid.

"In State v. Bielkiewicz, 267 N.J. Super. 520 [533] (App. Div. 1993), the Appellate Division ruled that jury instructions on accomplice liability must include an instruction that a defendant can be found guilty as an accomplice of a lesser included offense even though the principal is found guilty of the more serious offense." State v. Norman, 151 N.J. 5, 37 (1997). Accord State v. Harrington, 310 N.J. Super. 272, 278 (App. Div.), certif. denied, 156 N.J. 387 (1998). A jury should be told "that parties who participate in a criminal act may be guilty of different degrees of offense, depending on their own actions," because the liability of each participant in a crime depends on his or her own state of mind. Harrington, supra, 310 N.J. Super. at 278; State v. Franklin, 377 N.J. Super. 48, 55 (App. Div. 2005). A trial court, therefore, must "'carefully impart[ ] to the jury the distinctions between the specific intent required for the grades of the offense.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (quoting Weeks, supra, 107 N.J. at 410).

Here, the trial court charged the jury on attempted murder, including the instruction that the State must prove that defendant's purpose was to cause Sturdivant's death. "Purpose" was defined for the jury. The court then noted with respect to the charges of attempted murder, aggravated assault and possession of a weapon for an unlawful purpose, that the State had proceeded on alternate theories; i.e., either defendant was the shooter, or defendant acted as Williams' accomplice. The jury was instructed on the consequences of accomplice liability and that the accomplice and principal can be equally responsible or "there may be responsibility in a different degree depending on the circumstances."

After charging the jury on accomplice liability for attempted murder, the court noted that accomplice liability applied "to each one of the charges on aggravated assault." "Purposely," "knowingly" and "recklessly" were defined for the jury twice, once after the court instructed the jury on aggravated assault and again after the jury was charged on the lesser included offenses of second degree aggravated assault.

With respect to the weapons charge, the jury was instructed that defendant had to have possessed the firearm with the purpose to use it unlawfully against the person of another. "Purpose" was again defined by the court.

We have carefully considered the trial court's instructions on accomplice liability in the context of the entire jury charge, and we are persuaded that the charge as a whole was sufficient. Defendant was not prejudiced and there was no plain error.

V

With respect to sentencing, defendant argues that the trial court erred in imposing a term of ten years subject to five years parole ineligibility on Count 4, second degree possession of a weapon for an unlawful purpose. On this point, we agree.

The ordinary term for a second degree crime is five to ten years. N.J.S.A. 2C:43-6a(2). The mid-range term for a second degree offense is seven years. N.J.S.A. 2C:44-1(f)(1)(c). While a defendant may be sentenced above the mid-range term when the aggravating factors clearly and substantially outweigh the mitigating factors, N.J.S.A. 2C:43-6b; State v. Natale, 184 N.J. 458, 495-96 (2005), that was not the case here. In sentencing defendant, the trial court found that the mitigating factors outweighed the aggravating factors, warranting a sentence no greater than the mid-range term. Natale, supra, 184 N.J. at 487-88. Since the mitigating factors preponderate over the aggravating factors, and defendant was sentenced to a term greater than the mid-range term, she is entitled to a remand for resentencing on that count. Id. at 495-96.

We note that defendant's sentence on Count 4 was imposed concurrently with the ten-year term subject to 85% parole ineligibility imposed on Count 1, first degree attempted murder. Thus, there is no effective consequence to defendant from the incorrect sentence on Count 4. Nevertheless, we remand for resentencing on Count 4 consistent with Natale.

Defendant further argues that she should have been sentenced as a second degree offender on the first degree attempted murder charge. On this point, we disagree.

In determining whether to grant a motion to impose a downgraded sentence, the trial court must find that the mitigating factors substantially outweigh the aggravating factors and must "make a separate determination about the 'interest of justice.'" State v. Johnson, 376 N.J. Super. 163, 173 (App. Div.), certif. denied, 183 N.J. 592 (2005) (quoting State v. Megargel, 143 N.J. 484, 498-502 (1996). The "[o]nly 'compelling' circumstances, in addition to and separate from the mitigating factors, warrant the conclusion that a reduced sentence is 'in the interest of justice.'" Ibid. (quoting Megargel, supra, 143 N.J. at 501-02). Moreover, the trial court must explain why the interest of justice demands a downgraded sentence. State v. Lebra, 357 N.J. Super. 500, 514 (App. Div. 2003). In other words, in order to downgrade a sentence, the trial court must consider the severity of the crime, the circumstances surrounding it and whether there is a compelling reason for the downgrade. State v. Moore, 377 N.J. Super. 445, 450-51 (App. Div.), certif. denied, 185 N.J. 267 (2005), (quoting Megargal, supra, 143 N.J. at 505).

In denying defendant's motion to downgrade the first degree charge, the trial court noted that, pursuant to N.J.S.A. 2C:44-1(f)(2), it had to find that the mitigating factors "substantially" outweighed the aggravating factors. Although it found that the mitigating factors outweighed the aggravating factors, the court was "not satisfied that the mitigating factors substantially outweighed the aggravating factors, and [was] also not satisfied that the interests of justice demand[ed] that defendant be sentenced to a term appropriate to a crime of one degree lower than any of these offenses." (Emphasis added).

Having reviewed the sentencing proceedings, we are satisfied that the trial court correctly refused to sentence defendant as a second degree offender. Moreover, defendant has not presented any compelling reason for the downgrade.

The conviction is affirmed; the matter is remanded for resentencing on Count 4.

 

 

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A-5219-03T1

December 22, 2006