STATE OF NEW JERSEY v. DANIEL CORNELIUS

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0038-04T40038-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL CORNELIUS,

Defendant-Appellant.

______________________________________________________________

 

Submitted January 30, 2007 - Decided

Before Judges Coburn, R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2508.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Daniel Cornelius was charged under Atlantic County Indictment No. 01-12-2508 with the following crimes: murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); first degree robbery, N.J.S.A. 2C:15-1 (count three); second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count six); third degree hindering prosecution, N.J.S.A. 2C:29-3b(1) (count seven); fourth degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count eight); and second degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count nine). Following a jury trial, defendant was convicted on all counts, save murder, where no verdict was returned.

Following a June 10, 2004 denial of a motion for a new trial, the court sentenced defendant. For the felony murder conviction, the court sentenced defendant to serve a life term with a sixty-three and three-quarter year mandatory minimum under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2b. The court also sentenced defendant to a consecutive ten-year extended term with a three-year mandatory minimum for hindering prosecution and a concurrent five-year term for the offense of possession of a firearm without a permit. Count nine was dismissed and the remaining convictions were merged.

Defendant raises the following arguments on appeal:

POINT I: DEFENDANT'S ROBBERY AND FELONY MURDER CONVICTIONS MUST BE REVERSED BECAUSE INADEQUATE JURY INSTRUCTIONS ON ROBBERY ON A THEORY OF ATTEMPTED THEFT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW).

POINT II: THE STATE'S PRESENTATION OF HEARSAY, TO THE EFFECT THAT DEFENDANT'S PHOTOGRAPH WAS INCLUDED IN THE ARRAYS SHOWN TO EYEWITNESSES BECAUSE HE HAD BEEN IMPLICATED IN THE SHOOTING BY A NON-TESTIFYING WITNESS (VAUGHN BLAKELY), VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT III: IMPROPER SUMMATION COMMENTS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL; U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT IV: THE IMPOSITION OF MAXIMUM AND CONSECUTIVE TERMS FOR THE RELATED OFFENSES OF FELONY MURDER AND HINDERING APPREHENSION WAS MANIFESTLY EXCESSIVE.

We have carefully considered defendant's arguments in light of the facts and applicable law and we affirm the judgment of conviction in all respects.

On September 22, 2001, around 10:30 p.m., seventeen-year old Robert (Bobby) Williams agreed to walk Yakita Foreman and her two-year old son to her home in Atlantic City. On the way, the group decided to cut through the Shore Terrace Housing Complex, also known as the Six Bedrooms Project, and stopped at the playground for a few minutes to allow Foreman's son to play.

As the group was passing the community center, a man dressed in black boots, black jeans, a hooded sweatshirt with a scarf over his face asked Williams to come over. He had a gun and directed Williams to get down on the ground, but Williams refused. The perpetrator then turned Williams around and forced him to the doors of the community center and told him to empty his pockets. Williams did so, but the perpetrator again told him to empty everything out of his pockets. When Williams told him that he had already done so, the man hit Williams on the right side of his head with the gun. Williams turned around and punched the man, knocking him to the ground. Without rising, the man shot Williams. The shooter ran off first in one direction and then he ran back, passing Foreman a second time.

A 911 call, traced to the home of Cheryl Royster, reported the shooting. Police went to Royster's home, where they learned that Royster's son, Ronald Harris, had witnessed the shooting. Harris told police that he had been outside in the courtyard playing with his friends, Roger, Latel Allen, Todd Dorn, and others and that he recognized the shooter as "Shorty."

Vaughn Blakely approached another investigator and identified defendant as the shooter. The initial statement was not recorded because Blakely was obviously drunk or high at the time. However, a few days later police re-interviewed Blakely and a sworn, recorded statement, consistent with his earlier statement, was made. Based partly on this information, police decided to include defendant's photograph in a sequential photo array. This array was shown to Foreman, Allen and Harris. All of them identified defendant as the man who shot and killed Williams.

The officers also interviewed Abdul Muhammad, a resident of Six Bedrooms. On September 25, 2001, Muhammad gave a sworn statement in which he told police that he had witnessed the shooting from his window. A few days after his first statement, Muhammad gave another statement in which he identified defendant as the shooter.

During the course of the investigation, the Atlantic City police were unable to locate defendant. In January 2002, Keith Bell, an inmate at the Atlantic County Jail, sent prosecutors a letter, stating that he had information concerning the possible whereabouts of the defendant. On January 30, 2002, Bell gave a recorded statement to detectives of the Major Crime Squad, in hopes of obtaining a deal from the prosecutor's office. In his statement, Bell said that defendant did not intend to shoot Williams, but that he was attempting to rob him for drug money. Defendant was ultimately apprehended in Baltimore, Maryland, and brought to trial.

At the trial, Foreman, Harris, Allen, and Dorn all gave eyewitness testimony concerning the shooting and again identified defendant as the shooter. Allen and Dorn both made in-court identifications of defendant. Bell, despite his previous statement to police, testified that he had no information regarding the shooting and asserted that his earlier statement to the police was a lie. Muhammad also testified that his earlier statements to police, that defendant had shot Williams, were lies. Vaughn Blakely was not called to testify by either side.

Defendant first argues that the judge erred by not charging the jury on "attempt", and that the failure to do so is grounds for reversal. Defendant raises this argument for the first time on appeal and must therefore show that the failure to include the instruction on attempt was plain error, State v. Robinson, 289 N.J. Super. 447, 455 (App. Div.), certif. denied, 146 N.J. 497 (1996), that is, error clearly capable of producing an unjust result. R. 2:10-2. Defendant is unable to do so here.

In support of his argument, defendant relies upon State v. Rhett, 127 N.J. 3, 6-7 (1992) and State v. Sette, 259 N.J. Super. 156, 192 (App. Div.), certif. denied, 130 N.J. 597 (1992). Such reliance, however, is misplaced. In those cases, the judge misinformed the jury as to the requisite mental state necessary to support a conviction for attempt, telling them that a knowing or purposeful mens rea was sufficient. That is simply not the case here. The judge did not misinform the jury as to the necessary mental state for attempt.

Furthermore, a judge need not charge a jury extensively on some undisputed aspect of the case. See, e.g., State v. Denofa, 187 N.J. 24 (2006) (holding that, absent a request, a judge need only charge on territorial jurisdiction if the record clearly indicates a factual dispute as to where the crime occurred). Here, there was no dispute as to whether an attempted theft occurred in this case. Defendant never contested the fact that this case dealt with a robbery and never asked for an attempt charge. Defendant's theory of the case was that a robbery had occurred, but that he was not the perpetrator. Therefore, defendant cannot show plain error in failing to charge the jury on attempt.

Defendant next argues that the admission of Detective Michael Graham's testimony regarding statements Blakely made to him constituted impermissible hearsay, necessitating reversal of the conviction. While we agree that the statements should not have been admitted into evidence, in light of the overwhelming testimony of multiple eyewitnesses, the error does not warrant reversal.

At trial, Graham testified that Blakely had identified defendant as the shooter, and at least partly based on this information, defendant's photo was included in a photo array. Blakely did not testify at trial, thereby denying defendant his right to confrontation. State v. Branch, 182 N.J. 338, 348 (2005) (instructing that "[b]oth the hearsay rule and the right of confrontation protect a defendant from the incriminating statements of a faceless accuser who remains in the shadows and avoids the light of the court").

However, here, unlike the case in Branch, there is overwhelming evidence of defendant's guilt. These eyewitnesses - Foreman, Allen and Harris - all selected defendant out of a photo lineup. Allen, Harris and Dorn also made in-court identifications of defendant as the shooter. Additionally, though he later denied it, Muhammad initially stated that from the vantage point of his apartment window, he witnessed defendant shoot Williams. Reference to Blakely's statements, alone, would not be sufficient to tip the scales in favor of conviction. Therefore, the error was harmless.

Defendant also contends that statements made by the prosecutor during summation were so egregious as to warrant reversal of his conviction. During the course of his summation the prosecutor made appeals to the jurors' common sense and made statements such as "thank God the time for the attorneys are over." The prosecutor also commented on defense counsel's cross-examination of the witnesses. At the end of the summation, defense counsel objected but the judge found the statements to be fair commentary. We agree.

The language cited by the defendant falls well short of the language and types of statements prohibited by the Court in State v. Frost, 158 N.J. 76 (1999), relied upon by defendant. Here, none of the remarks made by the prosecution represented inaccurate legal or factual assertions, nor did they cast unwarranted aspersions upon defense counsel. The prosecutor's comments were not "so severe as to deprive defendant of a fair trial," and thus, do not warrant reversal. State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005).

Finally, defendant argues that his sentence was manifestly excessive. Under this point heading, defendant first argues that in imposing the maximum sentence for the felony murder, the court failed to consider the severity of the crime and did not focus on the circumstances of the offense. Defendant's arguments on this issue are without merit.

In reviewing a sentence of imprisonment we must focus on whether the sentencing determination was "clearly mistaken." State v. Jarbath, 114 N.J. 394, 401 (1989). Here, the judge found that the recidivism factors, N.J.S.A. 2C:44-1a(3), 1a(6) and 1a(9), applied. Based on defendant's extensive criminal history, as evidenced by the pre-sentence report, there was sufficient credible evidence in the record to support the application of these aggravating factors, justifying affirmance of the sentences. State v. Locurto, 157 N.J. 463, 471 (1999).

Defendant next attacks his sentence on the grounds that his sentences should have been imposed concurrent to each other, as opposed to consecutively. Defendant also argues, in the alternative, that even if consecutive sentences were warranted this court should remand for re-sentencing because the judge failed to put his reasoning on the record. We decline to do so.

It is well established that State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), sets out the factors that are to be considered in determining whether to impose consecutive or concurrent sentences. "A statement of reasons is a necessary prerequisite for adequate appellate review of sentencing decisions." State v. Miller, 108 N.J. 112, 122 (1987). Here, though the judge did not go through each Yarbough factor specifically, he did state that he was imposing consecutive sentences because of defendant's flight to Baltimore following the murder, the destruction or disappearance of the gun, and due to defendant's failure to appear at a sentencing for other crimes days before the murder of Williams. Furthermore, the record clearly indicates that the murder of Williams and defendant's flight were wholly separate and independent incidents, involving different places, time periods, and different victims. It can not be said that these two crimes stemmed from a "single period of aberrant behavior." Yarbough, supra, 100 N.J. at 643-44. Thus, imposition of consecutive sentences does not constitute an abuse of discretion. Though defendant's sentences are severe, they are not excessive.

Affirmed.

 

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11

A-0038-04T4

June 13, 2007