STATE OF NEW JERSEY v. BENJAMIN COX

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0699-04T40699-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENJAMIN COX,

Defendant-Appellant.

____________________________________________________________

 

Submitted January 23, 2007 - Decided

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

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-08-0854.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Benjamin Cox appeals from his January 2, 2004 judgment of conviction arising out of the shooting of Reginald Coley. Following a jury trial, defendant was found guilty of first degree purposeful/knowing murder, N.J.S.A. 2C:11-3a(1) or (2) (count one) and second degree possession of a weapon (handgun) for unlawful purposes, N.J.S.A. 2C:39-4(a) (count two). He was found not guilty of third degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count three). Thereafter, the same jury found defendant guilty of count four, second degree certain persons not to have weapons, N.J.S.A. 2C:39-7. On January 2, 2004, defendant was sentenced to a life term with a thirty-year period of parole ineligibility on count one. Count two was merged with count one, and a consecutive ten-year term with a five-year parole disqualifier was imposed on count four.

As stated, this matter arises out of the shooting death of Reginald Coley, known by his street name as "Rahdo." Several hours after he had an altercation with Coley, defendant returned to Rosa Parks Boulevard, walked up to a vacant lot with his right hand covered in a white towel, and fired three shots. Two of the shots struck Coley, causing him to bleed to death. Purvis King, a distant cousin of Coley, saw defendant give a "hand motion" pointing toward Coley, who came from an alley. King saw defendant extend his right hand toward Coley. He did not see a gun, but he heard three shots fired. King then ran into the liquor store where Coley had collapsed and told police officers that "Mojigg" (defendant's street name) shot him. King identified defendant from photographs in a book and gave a statement. Defendant was arrested on June 23, 2001, in Wallington on other charges, and officers from the Paterson Police Department went to Wallington to interview him. Defendant was read his Miranda rights and, without being asked a question, stated: "You guys probably think I killed that guy. What was I supposed to do, let him stomp a hole in my head?"

On appeal, defendant argues:

POINT I: THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING AGGRAVATED MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF MURDER (NOT RAISED BELOW).

POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF AN UNSOLICITED AND SPONTANEOUS OUTBURST BY A CRITICAL STATE'S WITNESS AND FURTHER ERRED BY PERMITTING SUCH TESTIMONY TO BE READ TO THE JURY DURING DELIBERATIONS AS PART OF A READBACK.

POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER CONNECTING THE DEFENDANT WITH OTHER CRIMINAL CONDUCT.

POINT IV: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE AN AMMUNITION CLIP FOUND ON THE DEFENDANT'S PERSON INTO EVIDENCE.

POINT V: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT TESTIMONY FROM PATROLMAN RODRIGUEZ AS AN EXCITED UTTERANCE PURSUANT TO N.J.R.E. 803(c)(2).

POINT VI: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT TESTIMONY FROM THERESA PERRY AS AN EXCITED UTTERANCE PURSUANT TO N.J.R.E. 803(c)(2).

POINT VII: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (PARTIALLY RAISED BELOW).

POINT VIII: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT IX: ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.

After carefully considering the record and briefs, we find defendant's arguments unpersuasive. We affirm except that we remand for a review of the sentence in light of State v. Natale 184 N.J. 458 (2005).

Defendant also filed a pro se brief, asserting many of the same arguments as his counsel, but arguing, in addition, that he was denied effective assistance of counsel. The effectiveness of counsel is best addressed in a post-conviction relief (PCR) petition, rather than on direct appeal. See State v. Preciose, 129 N.J. 451, 460-62 (1992).

Defendant argues that the trial court failed to instruct the jury on aggravated manslaughter as a lesser-included offense of manslaughter, even though defendant specifically requested that the charge not be given. Since defendant did not request a charge on the lesser-included offenses of manslaughter, we review the matter under the plain error rule, only reversing if the error was "clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jury to a result it otherwise might not have reached." State v. Jenkins, 178 N.J. 347, 361 (2004); R. 2:10-2.

N.J.S.A. 2C:1-8(e) provides that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." However, a trial judge has an "independent obligation" to instruct the jury on lesser-included charges when the evidence "clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361; State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); State v. Purnell, 126 N.J. 518, 541 (1992).

Here, the trial judge found that he could not "identify a rational basis for a reckless killing since the victim was shot in the back apparently while running away." The proper inquiry in distinguishing murder from reckless or aggravated manslaughter relates to defendant's state of mind as to the risk of death. Jenkins, supra, 178 N.J. at 363. In aggravated manslaughter "the defendant must have caused death with an 'awareness and conscious disregard of the probability of death.' If, instead, the defendant disregarded only a 'possibility' of death, the result is reckless manslaughter." Ibid. (emphasis in original). There was no evidence in the record to support a finding that defendant acted with reckless disregard that death was a possibility. Instead, the evidence shows defendant sought out his victim, brought a gun to the confrontation, and fired three shots at the victim as the victim ran away. The victim was not armed and there was no evidence that defendant thought he was. There was no struggle and there was no suggestion that the gun was fired accidentally as a result of mutual conduct. A witness stated that he specifically saw defendant point his hand toward the victim. Without a clear showing to support the possibility of recklessness, the judge's decision not to instruct the jury on the lesser-included offenses will be upheld.

In his pro se brief, defendant also contends that the trial judge should have charged the jury on imperfect self-defense and diminished capacity. See generally, State v. Bowens, 108 N.J. 622, 627-30 (1987); State v. Tierney, 356 N.J. Super. 468, 483 (App. Div.), certif. denied, 176 N.J. 72 (2003). However, defendant never requested either a self-defense charge or a charge relating to his mental capacity. Moreover, such charges would have been contrary to defendant's defense of mistaken identity. Defendant's trial strategy was to disclaim his very presence at the scene, and an imperfect self-defense charge or a diminished capacity charge would have been at odds with such a strategy.

Defendant argues that the trial judge erred by denying his motion for mistrial either (1) because of an outburst from State witness, Pervis King, which the court compounded by permitting testimony to be read to the jury during a read back; or (2) because of testimony volunteered by a police officer connecting defendant with other criminal conduct. We perceive no abuse of discretion by the judge in either situation.

Defense counsel finished cross-examining King, the "distant cousin" of Coley who identified defendant as having shot Coley. Without a question being posed, King started the following exchange:

THE WITNESS: Yeah. Don't try to sit here and accuse me of nothing. That man killed - he killed this man right here. He killed him. I saw it with my own eyes.

Q: Well, no, you didn't.

A: I saw it. I saw it with my own eyes. He killed Reginald Coley. That's all I got to say.

Q: And you're upset.

A: He killed him. He killed him.

The judge then interjected and told the witness to wait for a question. Defense counsel tried to establish that King had originally testified that he had not seen the shots, only heard them. King then said:

The fact of the matter is you could sit here and try to defend him all you want but he killed Reginald Coley and that's all I got to say. I saw it with my own eyes. You don't know how it feel [sic] to have a loved one snatched from you. You don't know how it feel [sic] to have somebody die in front of your eyes, man.

Defense counsel moved for a mistrial based on King's conduct, claiming that it prejudiced defendant. The trial judge found that King had said nothing that he "would not have been able to testify to." King was "very emotional" and "showed himself to be a witness with an interest in the case, not someone who is detached." Defendant contends that the trial court erred in denying his request for a mistrial.

A motion for a mistrial should be granted only in those situations that would otherwise result in manifest injustice. State v. DiRienzo, 53 N.J. 360, 383 (1969). The decision to grant or deny a motion for a mistrial is in the discretion of the court and will not be reversed on appeal unless an abuse or mistaken exercise of that discretion is shown. State v. Winter, 96 N.J. 640, 647 (1984). In this matter, King's outburst reiterated his claim that defendant was the one who shot Coley; this statement is consistent with his prior testimony and therefore defendant suffered no prejudice. If the jury did find these statements to be inconsistent with King's prior testimony, the inconsistencies could very well have helped defendant by highlighting King's questionable credibility. The outburst also underscored King's emotional connection to the outcome of the case, given that the victim was a distant cousin. The trial judge's determination that there is no manifest injustice was not an abuse or mistaken exercise of discretion.

Furthermore and contrary to defendant's assertions, allowing the disputed testimony of King to be read back to the jurors was permissible. The testimony was never struck during trial. Indeed, defense counsel engaged the witness by asking further questions on the same subject. "[A]s a general rule, if a jury requests a readback of the testimony of a witness, the readback should include both direct and cross-examination. The reason is obvious: cross-examination affords a full view of the witness's testimony including inconsistencies and impeaching material." State v. Wilson, 165 N.J. 657, 660 (2000). The comments and ensuing questions in King's testimony were part of the evidence and the judge had no basis to strike the comments after the evidence closed or to leave out the comments during the requested readback.

Defendant also contends that the trial judge erred in refusing to grant his application for a mistrial when a police witness testified that he "knew about" defendant. Officer Khalil Munem of the Paterson Police Department testified about the steps he took to locate defendant after the shooting. When asked if he was familiar with defendant at that time, Munem stated, "I knew him." The judge denied defendant's motion for a mistrial, and gave a curative instruction:

In the course of Sergeant Munem's testimony he indicated that he knew that defendant, knew who the defendant was. Police who are assigned to areas come to know just about everyone in that area who frequent that area. So Sergeant Munem could probably say that about everyone on the block or almost everyone on the block.

You shouldn't draw any adverse inference from that. I don't know that you would. But just so that we're clear, you shouldn't draw any adverse inference from that, the fact that a police officer knows who people are that frequent an area that he's assigned to.

As I say, I'm sure he could say that about - tell you just who is in every home on the block. Okay. So there's no mistake, everyone - both sides agree that no adverse inference is being suggested to you by that.

As stated earlier, a motion for a mistrial should be granted only where manifest injustice would result. DiRienzo, supra, 53 N.J. at 383. Here, the officer could have easily "known about" defendant through a variety of means, not necessarily his criminal history. He did not say that he knew defendant from previous run-ins with the law. Moreover, the trial judge properly gave a limiting instruction to the jury. An appellate court presumes that juries will understand and abide by the trial court's instructions. State v. Burris, 145 N.J. 509, 531 (1996). Therefore, the police officer's statement, that he "knew about" defendant, did not warrant a mistrial.

Defendant argues that the trial court committed error in admitting into evidence the ammunition clip found on defendant when he was arrested. Before trial, the judge held a hearing to determine the clip's admissibility and ruled it to be relevant, since two shells from a nine millimeter gun were found at the scene of the shooting and the clip found on defendant was for a nine millimeter gun.

Under N.J.R.E. 403, all relevant evidence is admissible, unless otherwise provided by the rules. "As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion. Even where there may have been error, reversal is required only when an unjust result occurred." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991) (citations omitted). We find no error in the judge's admission of the ammunition clip, since two shells from a nine millimeter gun were found at the scene of the shooting and the clip was for a nine millimeter gun. The ammunition clip had a potential tie to the scene of the crime, and indicated that defendant had knowledge of guns and access to compatible gun parts.

Defendant contends the trial court erred by allowing into evidence the testimony of a police officer concerning the "excited utterances" of two witnesses, King and Theresa Perry. Under N.J.R.E. 803(c)(2), an excited utterance is defined as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without the opportunity to deliberate or fabricate." See also State v. Branch, 182 N.J. 338, 365 (2005). The rule requires that "(1) there was a startling event, (2) the statement was made while the declarant was under the stress of excitement from that event, and (3) the statement related to that event." State v. Long, 173 N.J. 138, 158 (2002).

Defendant concedes that the factors necessary to support a finding of an excited utterance existed for King. Officer Rodriguez testified that King approached him less than a minute after he arrived at the scene in an agitated state and said in an elevated voice, "I know who did it. It was Mojigg." However, defendant argues that there was not a sufficient factual basis for King to be able to identify the shooter. Initially, King testified he saw defendant extend his hand and he heard three shots, but did not actually see the gun. The fact that King identified defendant as being the one who extended his right hand toward Coley immediately before King heard shots fired tends to support his conclusion that defendant was the person who shot Coley. Any lack of certainty bears upon the weight to be accorded his testimony. Furthermore, King picked defendant's photograph out of a police book shortly after the shooting, lending to the credibility of his identification.

Defendant also challenges whether the statements made by fifteen-year old Nyheem Perry, as testified to by his mother Theresa, constituted an excited utterance, pursuant to N.J.R.E. 803(c)(2). After going to the liquor store and seeing Coley collapsed and bleeding, Nyheem, who had been at the scene of the crime, told his mother that he saw an old black man come up from Putnam Street and start shooting. Defendant contends that the statement was not an excited utterance because of the delay in time between the actual shooting and the statement, during which time he went to the liquor store where numerous people had gathered, and he had the opportunity of "listening to the comments and remarks of the crowd." In deciding whether there was an opportunity to fabricate or deliberate, a court should consider the element of time, the circumstances of the incident, the mental and physical condition of the declarant and the nature of the utterance. Branch, supra, 182 N.J. at 366.

The evidence demonstrates that Nyheem's state of mind was continuous. He witnessed the shooting, was pulled into the house by his mother, went to where the victim lay bleeding, then left the scene and returned home where he made the statement shortly after returning. His comment was not in response to a question, but was volunteered, and he was shaking when he said it. Allowing the mother's testimony did not constitute an abuse of discretion.

Defendant claims that the prosecutor's summation exceeded the bounds of propriety and violated his right to a fair trial by posing rhetorical questions that "inferentially commented upon the defendant's Fifth Amendment privilege" not to testify. Prosecutors are entitled to "considerable leeway" in their closing arguments. State v. Smith, 167 N.J. 158, 177 (2001). The "primary duty of a prosecutor is . . . to see that justice is done," State v. Frost, 158 N.J. 76, 83 (1999), but prosecutors in criminal cases are expected to make "vigorous and forceful closing arguments." Smith, supra, 167 N.J. at 177. From our review of the record, the prosecutor's comments and questions during summation did not improperly comment on defendant's right not to testify. The prosecutor merely argued that the evidence and the inferences from that evidence indicated that defendant had a consciousness of guilt.

Defendant contends that his sentence was manifestly excessive because the judge erred in weighing the aggravating and mitigating factors. The trial judge considered the aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and (b). He applied aggravating factor (3), the risk that defendant will commit another offense, based on defendant's "drug history which includes heroin and cocaine daily for approximately ten years" and his juvenile history. He applied aggravating factor (6), the extent and seriousness of defendant's prior record, and factor (9), the need for deterring the defendant and others from violating the law. The judge found no applicable mitigating factors, and found that the aggravating factors substantially outweighed the mitigating factors. Defendant was sentenced to a life term with a thirty-year parole disqualifier on count one and a consecutive ten-year term with a five-year parole disqualifier on count four. Count two merged with count one.

Defendant contends that his sentences on counts one and four were manifestly excessive, because aggravating factors (3) and (6) did not apply. However a review of defendant's record reveals a criminal history dating back to age nineteen, and a string of convictions that left him incarcerated for much of the 1990s. Defendant has spent his entire adult life committing one crime after another and therefore, the trial judge was justified in his balancing of the aggravating and mitigating factors. "It is well settled that when reviewing a trial court's sentencing decision, '[a]n appellate court may not substitute its judgment for that of the trial court.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Johnson, 118 N.J. 10, 15 (1990)). We are obligated to affirm a sentence where, as here, "the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).

Finally, defendant argues that, assuming this Court does not conclude his sentence was manifestly excessive based on aggravating and mitigating factors, he is still entitled to a remand on count four based on State v. Natale, supra, 184 N.J. 458 (2005). In this respect, we agree. State v. Thomas, 188 N.J. 137, 153-54 (2006), recently held that all defendants who received a sentence in excess of the presumptive sentence and whose cases were in the pipeline when Natale was decided are entitled to resentencing, even if the only aggravating factors relied upon were 3, 6 and 9. Because defendant received a sentence in excess of the presumptive sentence on count four, and the trial court found only aggravating factors 3, 6 and 9 in this case, this matter is remanded for resentencing on count four.

Remanded for resentencing.

 

The judgment was signed on January 2, 2004 and entered on January 9, 2004. Defendant filed an untimely notice of appeal on October 13, 2004, which was accepted nunc pro tunc, pursuant to the Appellate Division Management Committee Minutes of March 18, 2000.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant has not advanced any arguments under Crawford v. Washington 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Hence, we do not consider whether Nyheem's statements are testimonial or, if they were, whether they might nevertheless be admitted. Rule 2:6-2(a)(5) requires that a party's legal argument be made under "appropriate point headings," and those are the only arguments considered by the court. DeSoto v. Smith, 383 N.J. Super. 384, 395 n.1 (App. Div. 2006).

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A-0699-04T4

June 21, 2007