STATE OF NEW JERSEY v. JAMES DAVIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1071-05T41071-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES DAVIS,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 30, 2007 - Decided June 22, 2007

Before Judges Skillman, Lisa and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 02-05-0670.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, James Davis, was found guilty by a jury of murdering his girlfriend, Natalie Williams, attempting to murder Natalie Williams' stepmother, Wanda Williams, and related weapons offenses. A judgment of conviction was entered setting forth a sentence of life imprisonment with a thirty-year parole disqualifier for murder, and a consecutive term of twenty years imprisonment with a ten-year parole disqualifier for attempted murder. The remaining counts were either merged or sentenced concurrent to the murder and attempted murder sentences.

Defendant argues on appeal:

POINT I:

THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY THAT DEFENDANT COULD BE CONVICTED OF AGGRAVATED MANSLAUGHTER AND AGGRAVATED ASSAULT, AS LESSER INCLUDED OFFENSES OF MURDER AND ATTEMPTED MURDER, 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 II:

THE IMPOSITION OF CONSECUTIVE TERMS FOR RELATED OFFENSES WAS MANIFESTLY EXCESSIVE.

We reject these arguments and affirm.

On December 7, 2000, at about 7:00 a.m., Natalie Williams called her stepmother, Wanda Williams, in an extremely upset state, informing her that defendant "had raped her, he had put a knife to her throat, he had forced her to have sex with him, he beat her head up against the dresser, and put a knife to her throat and told her if she told anybody, he would kill her." Defendant had left Natalie's apartment. Wanda called the police and reported the information related to her by Natalie.

Wanda then went to Natalie's apartment, where Natalie lived with her three-and-one-half-year-old daughter, Majanhe Williams. Wanda also informed James Williams, her husband and Natalie's father, of the incident.

When Wanda arrived at Natalie's apartment, defendant had returned. Natalie was crying. Wanda asked defendant whether he raped Natalie, to which defendant responded, "Boo, . . . we had sex a couple times." Wanda informed defendant that she had called the police, and he immediately grabbed Natalie's keys, ran out of the apartment, and drove away. Wanda followed him for a time in her car, but lost him in traffic, after which she returned to Natalie's apartment and made arrangements to take Majanhe to school while Natalie waited for the police to arrive. Wanda then took Natalie to school and went to work.

The police arrived, interviewed Natalie, and escorted her to the hospital where the investigation continued. Arrangements were made by which Natalie would stay with her mother that night and Majanhe would stay with Wanda and James Williams. At about 5:30 p.m., a police officer returned Natalie to her apartment to pick up some belongings.

At about 5:45 p.m., defendant telephoned James, who urged defendant to turn himself in to the police. Defendant said to James that he was not going back to jail and that "it was on," meaning to James that "something's going to happen." At James' urging, Wanda called the police and reported this conversation.

At about 6:30 p.m., Wanda and Majanhe returned to Natalie's apartment intending to pick up some of Majanhe's belongings. When they arrived, Natalie had the door barricaded with a chair. She removed it to let them in, but immediately returned it to that position. Before they were able to leave, defendant arrived. He demanded entrance, which they refused. While defendant was attempting to push the door open, Wanda could see that he was holding a handgun. Finally, defendant succeeded in pushing the door open.

Defendant approached Natalie, who was sitting on the couch with Majanhe. Defendant stood over Natalie and told her "he [would] get her." Defendant then pointed the gun at Natalie and fired three shots at very close range. One hit her in the back of the head near her ear causing her death. Another shot hit her in the knee, and the third shot missed.

Wanda immediately ran out of the apartment seeking help. Defendant ran out after her. Wanda tripped and fell in the street. Defendant caught up to her, grabbed her by the arm, and placed the gun to her head, exclaiming she "was going to learn to mind [her] business." Wanda was pleading with him for her life and attempting to push the gun away from her head. Defendant continued to hold her with one hand. Defendant kept placing the gun back to her head and fired one shot at point blank range that entered her neck and lodged in her back. Defendant said "it was a miss." Defendant then threw the gun away and fled the scene. Wanda was hospitalized for two days but survived the gunshot wound. The bullet has remained lodged in her back.

Portions of the events were observed by several independent eyewitnesses who testified for the State at trial. Defendant did not testify and did not present any evidence.

The grand jury returned a nine-count indictment, as follows: first-degree purposeful or knowing murder of Natalie Williams, N.J.S.A. 2C:11-3a(1) and (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); first-degree attempted murder of Wanda Williams, N.J.S.A. 2C:5-1 and 2C:11-3 (count three); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (count four); third-degree aggravated sexual contact, N.J.S.A. 2C:14-3 (count five); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count six, as to Natalie, and count seven as to Wanda); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (count eight); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count nine).

Prior to trial, on defendant's motion, count two was dismissed and counts four, five and eight were severed. Defendant was tried and found guilty of all remaining counts.

In pronouncing sentence, the judge sentenced defendant on count one to "a term of imprisonment of life," and stated that "[t]he Graves Act [N.J.S.A. 2C:43-6c] applies, as does the No Early Release Act [N.J.S.A. 2C:43-7.2]." The judge did not state the imposition of any period of parole ineligibility. On count three, the judge sentenced defendant to a term "of twenty years of which the defendant must serve 85 percent without parole eligibility under the No Early Release Act." The judge also ordered on counts one and three that defendant would be subject to five years parole supervision. The judge found that the aggravating factors clearly and substantially outweighed the non-existent mitigating factors. He ordered that the sentences on counts one and three be served consecutively. On count nine, the judge imposed a five-year prison term to be served concurrently with counts one and three. The judge merged counts six and seven with counts one and three respectively. Finally, on the State's motion, the judge dismissed counts four, five and eight.

The judgment of conviction (JOC) is inconsistent with the pronouncement of sentence with respect to counts one and three. The JOC provides for a sentence on count one of life imprisonment with a thirty-year parole disqualifier, and on count three a twenty-year prison sentence with a ten-year parole disqualifier. The JOC recites that the Graves Act applies to counts one and three, but does not recite applicability of the No Early Release Act (NERA), nor does it impose a term of parole supervision after release as required by NERA.

Neither party makes any arguments with respect to the correctness of the JOC. Both parties recite in their procedural history the imposition of sentence as reflected in the JOC. We note that because the crime occurred before NERA was amended in 2001, defendant's murder conviction was not subject to NERA. See State v. Manzie, 168 N.J. 113 (2001). Thus, notwithstanding the inconsistency with the pronouncement of sentence, there does not appear to be any basis for modification of the sentence reflected in the JOC with respect to count one. However, with respect to count three, it does not appear that the Manzie rationale would apply to attempted murder. Therefore, we assume that the State will apply to the trial court to seek the entry of an amended JOC to include a NERA parole disqualifier and imposition of a period of parole supervision on count three, to conform to the pronouncement of sentence. See State v. Pohlabel, 40 N.J. Super. 416 (App. Div. 1956). Upon the State's application, the parties may present whatever arguments are appropriate as to the applicability of NERA to an attempted murder committed before the 2001 amendment to NERA.

We now address defendant's appeal arguments. At trial, defendant requested that the judge instruct the jury on aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser-included offense to murder on count one, and on second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), as a lesser-included offense to attempted murder on count three. The State objected, and the judge declined to charge those lesser-included offenses.

Defendant contends that the jury should have been instructed on the lesser-included offenses because "the trial testimony indicated that the shots that struck the victims were fired recklessly, during a struggle over the gun or in an effort to intimidate them without causing death or serious bodily injury." According to defendant, the jury could have concluded that he acted recklessly, but without the requisite mental state for murder or attempted murder. He claims that the evidence demonstrated that the shots were fired during a struggle and as part of an effort to intimidate Natalie, not with the intent to cause death or serious bodily injury. With respect to Wanda, he claims that a jury could have found that the shot directed at her was intended to scare her rather than cause her death.

When a defendant requests submission to the jury of a lesser-included offense, "the court is obligated to examine the record and determine whether a rational basis exists for the jury to acquit the defendant of the charged offense and convict him of the lesser offense." State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003); N.J.S.A. 2C:1-8e. When the request is for aggravated manslaughter as a lesser-included offense of murder, the evidence must permit "a finding that the defendant was aware of and disregarded a probability but not a practical certainty that his conduct would cause death." State v. Gaines, 377 N.J. Super. 612, 623 (App. Div.), certif. denied, 185 N.J. 264 (2005). "[T]here are no legal rules as to what inferences may be drawn. The question is one of logic and common sense." State v. Hammond, 338 N.J. Super. 330, 337 (App. Div.), certif. denied, 169 N.J. 609 (2001) (quoting State v. Powell, 84 N.J. 305, 314 (1980), certif. denied, 87 N.J. 332 (1981)).

The trial judge found that the facts in this case were similar to those in Hammond, where we determined that a charge for manslaughter was not supported by the record. Id. at 339. In Hammond, we found that instead of defendant breaking off his attack on the victim, he "proceeded to draw a weapon, stood over the victim with the barrel of the gun pointed directly at him, and discharged two shots in succession at close range directly at the victim." Id. at 338. We concluded that "[t]he evidence, including eyewitness accounts of the event, rationally supports no finding other than that defendant acted deliberately and intentionally in causing the victim's death." Ibid.

We adverted to several cases in which our Supreme Court found no rational basis to conclude that the defendant might have only intended to inflict serious bodily injury. Id. at 338-39; see, e.g., State v. Harris, 141 N.J. 525, 550-51 (1995) (finding no rational basis when defendant fired single shot into victim's back and neck at close range while victim was laying on ground); State v. Biegenwald, 126 N.J. 1, 18 (1991) (finding no rational basis when defendant shot victim four times in head at close range); State v. Hightower, 120 N.J. 378, 413 (1990) (finding no rational basis when defendant shot victim three times, including one shot to brain, at close range); State v. Rose, 120 N.J. 61, 64 (1990) (finding no rational basis when defendant fired sawed-off shotgun into victim's abdomen at point-blank range).

The trial judge found no rational basis upon which the jury could acquit defendant of murder and convict him of aggravated manslaughter. He noted that the unrefuted evidence in the case was "that the defendant walked into the room, put a gun to the back of Natalie Williams['] head and pulled the trigger." The judge noted there was no basis for a finding of reckless conduct. And, as far as defendant's awareness of the practical certainty that his conduct would cause death, the judge noted that defendant had threatened that morning that he would kill Natalie if she reported the sexual assault and beating incident to the police, and that defendant told James "'It's on,' or words to that effect." Thus, the judge concluded that "there is no rational, logical basis upon which [he] could charge any form of manslaughter."

As to Wanda, the judge likewise reasoned that defendant pursued her while possessing a handgun, picked her up off the ground, and holding her with one hand placed the gun directly against her head and shot her in the neck, leading to the inevitable conclusion that the shot could not have been "intended to do anything other than to take the victim's life." Thus, the judge saw "no logical or rational basis for charging aggravated assault in the second degree."

We agree with the trial judge. Defendant's acts with respect to both victims were clearly intentional. The record supports no rational basis for a finding of reckless conduct. And, his acts were clearly intended to cause death, or, with respect to Natalie, were alternatively committed with knowledge of the practical certainty that they would cause death.

We find unpersuasive defendant's reliance on State v. Jenkins, 178 N.J. 347 (2004), and Gaines, supra. The facts here are materially distinguishable. In Jenkins, supra, 178 N.J. at 354, the defendant struck the victim in the back of the head with a brick, causing him to fall down a flight of stairs and land headfirst on the concrete below, causing his death. The Court reversed the defendant's conviction for murder because the trial court failed to instruct the jury on the lesser-included offenses of aggravated and reckless manslaughter. Id. at 353. The Court determined that the instruction was required because the evidence indicated that defendant may not have known that "it was highly probable that death would result." Id. at 363-64. To support its decision, the Court relied on the expert testimony which indicated that "it was not defendant's blow but rather the subsequent fall to the pavement that caused [the victim's] death . . . ." Id. at 364.

In Gaines, supra, 377 N.J. Super. at 616-17, 622, a fifteen-year-old boy was killed at a high school graduation party when the defendant, in nearby bushes, raised a gun, aimed at a branch, and fired above the crowd, but not into it. We upheld the trial court's charge of aggravated manslaughter because, based on the evidence, "the jurors could have concluded that [the defendant] fired under circumstances manifesting extreme indifference to human life, consciously disregarding a probability but unaware of a practical certainty of causing the death of a person below." Id. at 622.

Based on the facts in Jenkins and Gaines, a lesser-included charge for aggravated manslaughter was appropriate because a jury could have found that the defendant was not practically certain that his actions would result in death. Here, there was no basis in the evidence for any finding other than that defendant was practically certain that his actions would result in the death of Natalie. Unlike in Jenkins and Gaines, the facts here did not support a charge for the lesser-included offense of aggravated manslaughter.

Defendant complains that the imposition of consecutive sentences was unwarranted and resulted in an excessive sentence. He argues that the criminal acts against Natalie and Wanda were all part of a single episode, committed at or about the same time and place, and concurrent sentences should have been imposed. He further argues that the consecutive sentences cannot be sustained because the trial judge failed to state reasons for ordering the sentences on counts one and three to be served consecutively.

We reject these arguments. We will not disturb a sentence imposed by a trial judge in the absence of a clear abuse of discretion. State v. Roth, 95 N.J. 334, 363 (1984). When imposing consecutive sentences, the judge should express the reasons supporting the determination. State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). That was not done here, and we could order a remand for resentencing with an appropriate statement of reasons. See, e.g., State v. Miller, 108 N.J. 112, 122 (1987).

 
Consecutive sentences here were clearly warranted because "there can be no free crimes," and because the crimes committed in counts one and three involved separate acts of violence committed against separate victims. Yarbough, supra, 100 N.J. at 643-44; see also State v. Molina, 168 N.J. 436, 442 (2001); State v. Carey, 168 N.J. 413, 428-30 (2001); State v. Kromphold, 162 N.J. 345 (2000). Therefore, the judge's failure to express the reasons for imposing consecutive sentences was harmless, see R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971), and a remand for a statement of reasons is not needed. See State v. Perry, 124 N.J. 128, 177 (1991). Because there was no clear error of judgment that shocks the judicial conscience, see Roth, supra, 95 N.J. at 363-64, we have no occasion to disturb the consecutive sentences that were imposed.

Affirmed.

(continued)

(continued)

14

A-1071-05T4

June 22, 2007