STATE OF NEW JERSEY v. NATHAN HOLMES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7128-03T47128-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NATHAN HOLMES,

Defendant-Appellant.

_________________________________

 

Submitted March 1, 2006 - Decided June 30, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

03-11-2002-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Ingrid A. Enriquez, Designated

Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney

for respondent (Mary E. McAnally, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

On November 5, 2003, a Hudson County Grand Jury returned an Indictment charging defendant, Nathan Holmes, with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b (Count One); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Two); fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(2) (Count Three); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (Count Four).

On March 9, 2004, the scheduled trial date, defense counsel moved for a one-week adjournment. The State did not object. The motion was denied, and a bifurcated trial was held from Tuesday through Friday, March 9 through March 12, 2004. Prior to jury selection on March 9, Counts Two and Three of the indictment were dismissed, and Counts One and Four were bifurcated. On March 12 the jury returned a guilty verdict on Count One. The second phase of the bifurcated trial proceeded immediately on Count Four, and the jury returned a guilty verdict as to that count as well. On July 15, 2004, the judge heard oral argument and denied defendant's motion for a new trial. Defendant was sentenced to a four-year state prison term on Count One and a concurrent seven-year term, with a five-year period of parole ineligibility, on Count Four. Mandatory fines and penalties also were imposed.

The evidence at trial permitted the jury to find these facts. On the evening of August 7, 2003, Ralph Lubin, a security guard at the Montgomery Complex located at 327 Montgomery Street, Jersey City, was working with another guard when they observed a black male riding a bicycle back and forth with a towel covering one of his hands on his crotch. They watched him and another male riding a bicycle for five or six minutes. Then they saw that the towel was concealing a firearm, and they decided they should call the Jersey City Police Department. Lubin's co-worker informed the police by telephone that they had observed two black males, wearing white T-shirts and blue jeans, riding bicycles toward the Dixon Mills project. He reported that one of the individuals, a dark-skinned male, had a weapon in his possession, and that both individuals rode away down Montgomery Street, toward the Journal Square and Dixon Mills area. After defendant was apprehended, Lubin was called to police headquarters to identify him. He testified that he told the police that defendant was not the individual he saw hiding a weapon under a towel, but he was the other individual they had seen riding with that person.

At approximately 9 p.m., based on the report and information provided in the telephone call to police, a broadcast was transmitted over the police radio. Lieutenant Chester Major, a Jersey City Police Officer assigned to the patrol division, was riding alone and in uniform, in a marked vehicle, at the time. In response to the broadcast, Lieutenant Major, who was located near Marin and Sixth, headed toward the area of 327 Montgomery to provide backup. After receiving information from other police units that the suspects were last seen fleeing west on Montgomery, Lieutenant Major made a U-turn at the intersection of Varick and Montgomery and headed west on Montgomery.

At the same time, Jersey City Police Officers Joseph Santiago and Walter Chowanec were riding in a marked police vehicle and heard the initial radio broadcast. They proceeded toward Montgomery. Traveling west on Montgomery, the officers saw Lieutenant Major make a U-turn and proceeded to follow him.

As he was driving on Montgomery, Lieutenant Major noticed an individual riding a bicycle in the distance. When he was approximately sixty yards away, Lieutenant Major realized that the individual fit the description he had heard in the radio broadcast. Still following that individual, the lieutenant saw him cross over Montgomery and turn south onto Colgate, then stop in the second driveway of Siperstein's Paints. Lieutenant Major, who was then approximately fifty feet away, observed a silver handgun in the individual's right hand. At that point, the individual looked at the lieutenant, his body jerked, and the gun discharged. As the gun discharged, Lieutenant Major heard the shot and saw a flash. The individual, identified shortly thereafter as defendant, fled on the bicycle and tossed an object from his right hand. He then turned and headed south on Colgate, then west onto York Street.

Activating his emergency lights, Lieutenant Major continued to follow defendant, who was cycling against oncoming traffic. Defendant proceeded up Montgomery towards the Dixon Mills Housing Complex and turned into the far driveway leading to a cul-de-sac. Lieutenant Major also entered the cul-de-sac, followed by Officers Santiago and Chowanec, who blocked the driveway.

According to Officer Santiago, defendant jumped off the bike and started to run. Lieutenant Major, however, testified that defendant raised his hands in the air and allowed the bike to fall from under him. Defendant was then placed under arrest. A pat-down search was conducted and defendant's waist was checked. No weapon was recovered. Defendant was transported to the precinct for processing, where he was searched more thoroughly, and an unfired .38 caliber Smith & Wesson bullet was retrieved from his pocket.

While Lieutenant Major and Officers Santiago and Chowanec were pursuing defendant, Detective Robert Vogt, who was working the evening tour with two other officers in an unmarked vehicle, also heard a broadcast seeking assistance for two units in the area of 327 Montgomery Street. Detective Vogt proceeded west on Montgomery to Colgate and turned right onto York. Once on York, the detective was approached by Lucho Garcia, the owner of a garage located at the corner of Colgate.

Garcia testified that at approximately 9 p.m. that evening he heard a shot fired, and he went outside immediately. He saw an individual pass by quickly on a bike and throw something; it sounded like metal when it hit one of the vehicles parked nearby. Garcia directed the officers toward a van parked midway down the block. Detective Vogt walked over to the area and discovered a silver handgun beneath the van. The detective opened the gun and found five .38 caliber rounds, four live and one spent. Testing on the handgun later confirmed that it was operable. No fingerprint or ballistics tests were performed on the gun, and no gun residue tests were performed on defendant.

Defendant did not testify at trial. Lubin, the witness who was involved in the original call to the Jersey City Police Department, testified on defendant's behalf. According to Lubin, defendant was not the male he observed concealing a weapon with a towel. He did see defendant riding behind the that person on another bike, and they rode off together.

When the jury initially returned its guilty verdict on Count One, defense counsel requested the judge to poll the jury. After juror number seven expressed disagreement with the verdict, the judge immediately stopped polling the jury, and issued the following instruction:

All right, ladies and gentlemen, as I indicated to you, in order for you to return a verdict, your verdict must be unanimous. Since, apparently, it is not, I'm going to ask you, please return to the jury room and continue your deliberations.

Later that day, the jury returned a unanimous guilty verdict on Count One.

The bifurcated trial went forward on the charge of possession of a handgun by a person previously convicted of a predicate offense. The only additional evidence presented by the State was defendant's prior aggravated assault conviction. The jury was charged and returned a guilty verdict on that charge as well.

Defendant raises these arguments on appeal:

POINT I

THE COURT'S FAILURE TO GRANT DEFENSE COUNSEL'S REQUEST FOR A NEW TRIAL WAS AN ABUSE OF DISCRETION.

A. THE TRIAL JUDGE ABUSED HIS DISCRETION IN FAILING TO GRANT DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT, WHICH RESULTED IN AN UNFAIR TRIAL FOR THE DEFENDANT, WARRANTING REVERSAL.

B. STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.

C. THE TRIAL COURT ERRED IN FAILING TO POLL THE ENTIRE JURY AND TO CHARGE THE JURY AFTER RE-DELIBERATIONS.

POINT II

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

POINT III

DEFENDANT'S CONVICTION MUST BE SET ASIDE AS THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV

THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

We have carefully considered the record in light of defendant's contentions on appeal, and we are satisfied that our intervention is not warranted.

Defendant contends in Point I that the trial judge erred in denying his motion for a new trial. First, he argues that he was entitled to a new trial because the judge abused his discretion in denying counsel's request for an adjournment. Second, defendant argues that prosecutorial misconduct in summation deprived him of the right to have his case fairly assessed by the jury. Finally, defendant argues that a new trial should have been granted because of jury polling errors. In Point II, defendant contends that cumulative error requires a new trial.

On March 9, prior to jury selection, defendant's trial attorney, who was a member of the Public Defender's office, moved for a one week adjournment on the ground that she did not receive the file until the previous Friday, March 5, which allegedly prevented her from meeting with defendant for sufficient time to allow him to assist in his own defense. She claimed she did not have enough time to review property and evidence reports and witness lists, which she had received that same morning.

In denying the motion, Judge DePascale noted that the Public Defender's office had been ordered on February 9 to be prepared for trial on March 9. The judge also noted that this was a simple case, and there were no extensive records with which counsel needed to familiarize herself.

In post-verdict argument on defendant's motion for a new trial, counsel also argued that the denial of an adjournment prohibited her from effectively investigating the case and speaking to the witnesses on the State's witness list. According to counsel, another witness, Fidel Pien, would have corroborated Lubin's testimony that defendant was not the individual he saw with the weapon. Pien was the security guard working with Lubin on the night in question; he had made the call to the police about their observations.

Denying the new trial motion, Judge DePascale once again rejected counsel's argument that she had insufficient time to prepare for the case. The judge opined that counsel had four days to speak with defendant, who was confined in the county jail, and repeated that the case itself and the relevant documents were not complicated. In addition, the judge noted that in counsel's motion for an adjournment, she never represented that she needed time for further investigation. The judge suggested that the proposed testimony by Pien would have been cumulative, merely repeating Lubin's testimony without providing any new information, and that defendant had no specific new witness or new evidence to offer.

The decision whether to grant an adjournment "rests within the sound discretion of the trial court." State v. D'Orsi, 113 N.J. Super. 527, 532-33 (App. Div.) (newly-retained counsel sought adjournment), certif. denied, 58 N.J. 335 (1971). A denial does not constitute reversible error unless there is "a showing of an abuse of discretion causing defendant a manifest wrong or injury." State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985). Moreover, the trial judge has a recognized interest in controlling the court calendar to allow for the "efficient administration of justice without unreasonable delay." Id. at 401.

With respect to the denial of the adjournment request, defendant suggests that counsel would have interviewed and called Pien as an additional witness if she had been given more time. But Pien's role was not newly discovered. For newly discovered evidence to entitle the defendant to a new trial, that evidence must be:

(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.

[State v. Buonadonna, 122 N.J. 22, 50 (1991) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

Unlike State v. Bellamy, 329 N.J. Super. 371 (App. Div. 2000), upon which defendant relies, the proposed additional witness here Pien did not promise the kind of new information addressed in that case. See id. at 374-76. Assuming Pien's testimony would have corroborated Lubin's testimony that defendant was not the same individual they had observed hiding a weapon, there is nothing to suggest that the verdict would have been different if Pien had testified. The State did not dispute Lubin's testimony that it was not defendant that he saw hiding a weapon with a towel. As the State argued, Lubin saw two black males on bicycles; the second individual was never apprehended. Pien's testimony would have done nothing to dispel the State's theory that two individuals were seen by Lubin and Pien on bicycles that night, and that both were armed with guns.

We note that defense counsel did not seek an adjournment when she received the file on the previous Friday, nor on the Monday before the scheduled Tuesday trial date. We are satisfied that while granting a brief adjournment might have been a reasonable response under the circumstances, denying an adjournment did not constitute an abuse of discretion and did not result in a manifest wrong or injury.

Defendant also contends that the motion for a new trial should have been granted because of improper, prejudicial remarks made by the prosecutor during summation. Specifically, defendant points to the following portion of the argument:

Unfortunately, this isn't the only gun in Jersey City. I have no doubt there was another black male on a bicycle with a handgun in his possession that night and unfortunately, the police weren't able to catch him but acting on that information, they proceeded in the direction they were given and they saw one male on a bike with a handgun, the defendant, Nathan Holmes.

We see nothing improper in these comments. Moreover, defense counsel made no objection at the time, suggesting that counsel perceived no prejudice. See State v. Frost, 158 N.J. 76, 83-84 (1999). We see no merit in counsel's argument. See R. 2:11-3(e)(2).

Defendant also argued for a new trial on the ground that the trial judge should have continued to poll the jury after juror number seven dissented, rather than immediately directing the jury to continue to deliberate. But defendant did not object at the time. "[F]ailure to timely object to either the lack of a poll of the jurors or a defect in the polling constitutes a waiver of rights." State v. Rodriguez, 254 N.J. Super. 339, 349 (App. Div. 1992). There was no reason to poll the rest of the jurors once juror number seven announced a disagreement; there was no verdict. Defendant also argues that the jurors should have been charged again on Count One before continuing to deliberate. We agree with the trial judge that the initial jury instructions and brief reinstruction on the need for unanimity were sufficient to convey that the verdict had to be unanimous. These arguments respecting jury polling and instruction are also without merit. See R. 2:11-3(e)(2).

Having found none of the errors cited by defendant in Point I, we find no merit in defendant's argument on the basis of cumulative error in Point II. See R. 2:11-3(e)(2).

In Point III, defendant argues that the jury's verdict was against the weight of the evidence. He contends that the evidence presented at trial was in sharp conflict, and the testimony contained inconsistencies and contradictions. This argument was not raised by defendant in his motion for a new trial, and therefore "shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." See R. 2:10-1; see also State v. DiFerdinando, 345 N.J. Super. 382, 392 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). Even if we were to consider this argument, we would reject it as without merit.

Defendant fit the description that was initially broadcast to the officers. Both Lieutenant Major and the local garage owner, Garcia, saw defendant throw something out of his right hand. When defendant was searched, a .38 caliber bullet was found, the size that matched the gun that was recovered from the spot where defendant was seen to have thrown it. Lieutenant Major testified that he never lost sight of defendant between the time defendant fired the gun and his apprehension and arrest. Based on this evidence, a jury could conclude beyond a reasonable doubt that defendant was guilty of possessing the weapon. Once the State proved Count One, conviction on Count Four was a virtual certainty.

Defendant's claim that the evidence was in "conflict" does not establish that the evidence was insufficient to support a guilty verdict. A jury has the right to weigh and to credit or discredit evidence as it sees fit. State v. Muhammad, 182 N.J. 551, 577 (2005); DiFerdinando, supra, 345 N.J. Super. at 399. In this case, the jury credited the State's witnesses.

Pursuant to Rule 2:10-1, an appellate court shall not reverse a lower court's ruling on a motion for a new trial based on the argument that the jury verdict is against the weight of the evidence "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. The standard applied by the reviewing court is substantially similar to the standard controlling the trial court's decision. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). The trial judge's decision "'is entitled to considerable respect and should be overturned only after the reviewing judge has carefully scrutinized the record and determined that to uphold the judgment would result in a manifest denial of justice.'" Lindenmuth v. Holden, 296 N.J. Super. 42, 49 (App. Div. 1996) (quoting Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 579 (App. Div.), certif. denied, 142 N.J. 574 (1995)), certif. denied, 149 N.J. 34 (1997)s. None of defendant's arguments persuades us that there was a miscarriage of justice or that the judge abused his discretion in denying defendant a new trial.

Defendant's argument that the judge should have applied mitigating factor 10, N.J.S.A. 2C:44-1b(10), is without merit; his conviction for a second-degree offense, and his prior record, virtually precluded a probationary sentence. Defendant's base term of seven years was appropriate and well within the judge's discretion. Defendant had extensive involvement with the law, including thirteen juvenile adjudications and an adult aggravated assault conviction for which he, had received a sentence of eighteen months. Finally, N.J.S.A. 2C:39-7b(a) mandated a five-year parole ineligibility term on Count Four.

Affirmed.

 

The judge explained why he saw no need for an adjournment:

The incident itself, as I understand it from the conversation we had in chambers, it's a single episode, one incident. There are three or four witnesses. One of those witnesses being an operability expert, so you have fact witnesses. There are about three fact witnesses.

Identification is not an issue. There are no complex issues in the case. It's a simple matter of whether or not the police are to be believed or not. Cross-examination, therefore, is obviously important, but in terms of preparation to cross-examine the witness, there are three pages of police reports which could be read in about ten minutes, and twenty-six pages of Grand Jury transcript which can also be read in about twenty minutes.

That would be about a half an hour's worth of preparation, at least reading. Spending another hour or two discussing the matter with your client might be helpful and maybe an hour or two planning [what] you intend to do. That time is available to you today since all we will do today is select a jury. I won't even require you to open today, but there's absolutely no reason why the case can't go forward.

Defendant failed to note in Point III, as required, that the argument was not raised below. See R. 2:6-2(a)(1).

(continued)

(continued)

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A-7128-03T4

June 30, 2006