STATE OF NEW JERSEY v. HOWARD DUNNS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1076-05T41076-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HOWARD L. DUNNS,

Defendant-Appellant.

____________________________

 

Submitted April 16, 2007 - Decided May 18, 2007

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Salem County,

04-08-0295 and 04-08-0296.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, Designated Counsel, on the brief).

PER CURIAM

Defendant, Howard L. Dunns, appeals from his convictions relating to two separate burglaries and from the sentences imposed. We affirm but remand for a technical correction to the judgment of conviction.

Salem County Indictment No. 04-08-00295 charged defendant with offenses relating to events of June 25, 2003, at the home of Stephen DelRossi in Salem, New Jersey. Specifically, defendant was charged with third-degree burglary, N.J.S.A. 2C:18-2 (Count One); fourth-degree attempted theft, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3 (Count Two); and fourth-degree criminal trespass, N.J.S.A. 2C:18-3a (Count Three). Defendant was also charged, in Salem County Indictment No. 04-08-00296, with offenses relating to events of June 23, 2003, at the home of Jerrold Smith in Upper Pittsgrove Township. Specifically, he was charged with third-degree burglary, N.J.S.A. 2C:18-2 (Count One) and third-degree theft, N.J.S.A. 2C:20-3 (Count Two).

Prior to trial and after an appropriate N.J.R.E. 104 hearing, the judge granted the State's motion to admit evidence of incidents occurring on July 4, 2003, at the home of Wanda DuBois in Bridgeton, Cumberland County, and on June 23, 2003, at the home of Kyle Uhland in Cumberland County pursuant to N.J.R.E. 404(b). Given that ruling, defendant did not object to the State's motion to try the indictments together. After trial, defendant was convicted on Count One of Indictment No. 04-08-00295. Because the judge anticipated a merger of the second and third counts into the first count, the jury was instructed not to return a verdict as to those counts. Defendant was also convicted of both counts of Indictment No. 04-08-00296.

On August 16, 2005, defendant was sentenced to a custodial term of three years on Count One of Indictment No. 04-08-00295, to be served consecutive to the sentence imposed on Indictment No. 04-08-00296. Count Two of Indictment No. 04-08-00296 was merged into Count One and defendant was sentenced to a custodial term of three years to run consecutive to the Indictment No. 04-08-00295 sentence and a sentence he was serving as the result of a Cumberland County conviction. Defendant received 165 days of gap-time on each conviction.

On appeal, defendant advances the following arguments for our consideration:

POINT I

THE COURT ERRED IN HAVING DENIED THE DEFENDANT'S MOTION FOR A MISTRIAL BECAUSE THE COURT PERMITTED THE STATE TO INTRODUCE EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS CONTRARY TO THE PROVISIONS SET FORTH IN [N.J.R.E.] 404(B), AND BECAUSE THE COURT PROVIDED A JURY CHARGE THAT MISINFORMED THE JURY ON CONTROLLING LAW AND FAILED TO GIVE THE JURY A VERBATIM RECITATION OF THE MODEL JURY CHARGE FOR REASONABLE DOUBT.

A. THE JUDGE ERRED WHEN HE PERMITTED THE STATE TO INTRODUCE EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS CONTRARY TO THE PROVISIONS SET FORTH IN [N.J.R.E.] 404(B).

B. THE COURT PROVIDED A JURY CHARGE THAT MISFORMED THE JURY ON CONTROLLING LAW AND FAILED TO GIVE THE JURY A VERBATIM RECITATION OF THE MODEL JURY CHARGE FOR REASONABLE DOUBT.

POINT II

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION OF THE CRIME CHARGED.

POINT III

THE COURT INCORRECTLY RESTRICTED THE DEFENDANT'S GAP-TIME CREDITS IN VIOLATION OF N.J.S.A. 2C:44-5(B)(2) AND THE DEFENDANTS JUDGEMENT OF CONVICTION ERRONEOUSLY STATES THAT THE DEFENDANT PLEAD GUILTY TO CRIMES FOR WHICH HE WAS CONVICTED AFTER A TRIAL.

We consider first the claim that Judge Forester improperly permitted the jury to consider evidence of the July 4, 2003, incident at the DuBois residence and the June 23, 2003, incident at the Uhland residence. The evidence of those unindicted crimes was admitted pursuant to N.J.R.E. 404(b) which provides:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person 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.

Admission of 404(b) evidence is governed by the test first annunciated in State v. Cofield, 127 N.J. 328, 338 (1992). That four-pronged test requires that:

1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
 
[Ibid.]

To determine if the evidence met the requirements for admission, the judge conducted a hearing on November 5, 2004, at which the State presented the testimony of Detective Mike Peterson, who testified that he was "involved in the investigation of a series of burglaries in the Salem County, Cumberland County area." Peterson testified that he was initially involved in an investigation of a July 4, 2003, "home invasion at the [DuBois] residence in Cumberland County." His investigation of the DuBois burglary led to the recovery of a vehicle in which the police found "a pair of Bushnell binoculars that we deemed to be stolen from the Smith residence in Salem County."

Peterson learned that "unknown actors" entered the Smith home "by kicking in a door," took property, including the binoculars, and fled in a Chrysler vehicle. Although the Chrysler was never found, the judge heard that on June 23, 2004, a Chrysler vehicle that was described as similar to that later seen leaving the Smith residence on July 4, 2003, transported two black males to the Uhland residence in Cumberland County.

Fourteen-year-old Kyle Uhland was home and witnessed the car pull into the driveway and one of the men, carrying a blue and grey phone which Kyle recognized as a Nextel i90 flip style, exit the car and gain access by kicking in the door to the home. Kyle inadvertently made some noise, causing the intruders to leave. He was unable to identify defendant, but provided a general description that was similar to defendant's actual appearance.

The phone that Kyle Uhland described in the possession of one of the men breaking into his home was later discovered at the scene of the burglary at the DelRossi residence. The phone was found to belong to defendant's brother, Clarence Dunns. When Clarence was interviewed, he reported being instructed by his brother that "if anybody asks you, comes talking about the phone, to tell them that" the phone had been lost.

Peterson completed his description of the Dubois incident. Mr. DuBois was home when a blue Honda Odyssey van, occupied by three black males, pulled up to his residence. Two men exited the car and kicked in the door to the house. Mr. Dubois had a handgun and began shooting. The intruders fled. Defendant and his codefendant were apprehended. The vehicle was located and the Smith binoculars were found in the van.

When he was apprehended, codefendant Burden was using a cell phone that was linked to the phone found at the DelRossi home by both the number and the account. Moreover, he carried identification in the name of Montoya Harris and a traffic ticket issued to Montoya Harris as the driver of the "same blue Honda Odyssey" used in the DuBois burglary and, by permissible inference, in the Smith burglary.

Peterson described the homes as "residences with business attached," in "close proximity to one another," each of which had been entered "by forced entry with just consistency with kicking the door open." The entries all took place "about the same time during the day." Moreover three of the incidents involved cell phones linked to Dunns through his brother. The vehicle utilized at the Dubois residence had been operated by defendant in whose (false) name a ticket had been previously issued. Peterson summed up the connections between the burglaries as follows:

Each one occurred about the same time during the day. They were daytime jobs. In each job, the residence was breached by forced entry with just consistency with kicking the door open. There was a Chrysler seen either at or fleeing the scene of two out of those four burglaries. There was the location of, or there was the appearance of two black males at each one of them. And they were all, like I already stated, homes in a rural area, close proximity to one another, and several had businesses attached.

The function of the trial judge in considering an application for the admission of N.J.R.E. 404(b) evidence is that of a gatekeeper. That is, the judge must evaluate the proffered evidence to determine if a jury could find each prong of the Cofield test to have been met. State v. Hernandez, 170 N.J. 106, 127-28 (2001). We evaluate the judge's decision to see if it constitutes an abuse of discretion. Id. AT 128. Applying that standard, we are satisfied that the judge appropriately admitted the evidence. The judge thought the evidence probative of the identity of the perpetrators of the Smith and DelRossi burglaries. We concur. Certainly a cell phone used at the Uhland home and found at the DelRossi home would allow an inference that the same person committed both crimes. Indeed, since the cell phone lost at the DelRossi residence was linked to an account held in the name of defendant's brother, defendant's possession of the phone when it was lost at DelRossi's may be inferred from his direction to his brother to say the phone had been lost. Similarly, binoculars taken from the Smith home and found in the possession of a person committing the DuBois burglary permits an inference that the same person committed both crimes.

The crimes were sufficiently similar and in sufficient geographic and temporal proximity to meet the second Cofield requirement. Finally, while a jury may not accept the proof of the non-indicted crimes as clearly and convincingly established, such a conclusion would be permissible. Nothing more is required.

The judge recognized the prejudice that invariably accompanies the admission of 404(b) evidence but declared that "I will fashion a careful instruction to ensure to the best that can be that the prejudice is minimized but that the probative value is recognized." He did so, emphasizing the presumption of innocence extended to all criminal defendants. Moreover he carefully informed the jury that the use of the 404(b) evidence was limited to proof of the identity of the perpetrators of the charged crimes and was conditioned upon a jury finding by clear and convincing evidence that defendant had participated in the Uhland and DuBois crimes.

Next, defendant argues that his conviction for the Smith burglary (Indictment No. 04-08-00296) was unsupported by the evidence and that his motion for acquittal should have been granted. A motion for a directed verdict of acquittal is governed by Rule 3:18-1, which requires a judgment of acquittal "if the evidence is insufficient to warrant a conviction." In evaluating the sufficiency of the evidence

the trial judge must determine . . . whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

We apply the same standard as the trial court to decide if the motion should have been granted. State v. Moffa, 42 N.J. 258, 263 (1964). Thus viewed, the evidence before the jury concerned four burglaries, committed during a brief period of time in a geographically limited area, of similarly situated residences conducted with identical mechanisms of entry and at approximately the same time of day. Defendant was arrested under circumstances that would support a finding that he had committed the DuBuois burglary in the company of codefendant Burden who drove a vehicle containing binoculars stolen from the Smith residence. Descriptions given by Stephen DelRossi and Kyle Uhland were consistent with defendant's description.

The judge reviewed that evidence and recognized the circumstantial nature of the evidence linking defendant to the Smith robbery. He concluded that "a reasonable jury given the benefit of all the inferences that the [S]tate is entitled to could . . . make all of those links by circumstantial evidence and by inferences[.]" Accordingly, he denied the motion. We agree that a reasonable jury might find the evidence sufficient to prove defendant, whether alone or with others, committed all four crimes. A reasonable jury certainly might have concluded that defendant was sufficiently connected to the Smith crime by his use of the Odyssey in which the property stolen from Smith was located. Although the jury was not compelled to convict, the evidence supports the conviction and the judge's denials of the motion for a directed verdict and for a new trial were fully supported by the evidence.

Defendant next asserts that the judge's charge as to reasonable doubt was improper. The judge paraphrased the Model Jury Charge, informing the jury that

the State's burden does not have to - - the State does not have to remove all doubt and prove something to an absolute certainty. The burden is not that high, but it is high. It is a standard that is required in the criminal courts namely to prove to your satisfaction beyond a reasonable doubt. A reasonable doubt could arise from the evidence that you have heard. A reasonable doubt could arise from a lack of evidence if you feel that there has been a lack of evidence. So after you have given full, fair and impartial consideration to all of the evidence, if you are satisfied that the State has carried its burden, and has proven to you beyond a reasonable doubt, then you must find Mr. Dunns . . . guilty.

The judge continued after an interruption by an unidentified speaker:

If you are not satisfied that the State has carried its burden to prove to you and convince you beyond a reasonable doubt, then you must find Mr. Dunns . . . not guilty.

. . .

Another way it is sometimes said is that if you are firmly convinced of the defendant's guilt, then you must find him . . . guilty. If you are not firmly convinced, then you must find [him] not guilty. That is what reasonable doubt, the burden of proof and the presumption of innocence is all about.

Defendant objected on the grounds that the judge had not given a verbatim recitation of the model jury charge. That charge provides:

The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty.

The State has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is necessary to prove only that a fact is more likely true than not true. In criminal cases, the State's proof must be more powerful than that. It must be beyond a reasonable doubt.

A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant's guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find [him/her] guilty. If, on the other hand, you are not firmly convinced of defendant's guilt, you must give defendant the benefit of the doubt and find [him/her] not guilty.

[Model Jury Charges (Criminal), "Reasonable Doubt," Feb. 24, 1997.]

We agree that as a general rule "model jury charges should be followed and read in their entirety to the jury." State v. R.B., 183 N.J. 308, 325 (2005). The model jury charge derives from State v. Medina, 147 N.J. 43, 61 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997), which contains the admonition that "trial courts [should] not . . . deviate from the definition [of reasonable doubt] contained in this opinion. The failure to adhere to the definition, over an objection, runs the risk of reversible error." Ibid. Nevertheless, "reasonable-doubt instructions must be considered in their entirety. Only those instructions that overall lessen the State's burden of proof violate due process." Id. at 51-52 (internal citations omitted).

Given this standard, we are satisfied that the judge's instructions adequately apprised the jury of the responsibility to find guilt beyond a reasonable doubt and adequately apprised them of the nature of that standard. We do not believe the omission of the reference to the civil standard in any way diminished the burden otherwise placed upon the State.

We turn then to defendant's challenge to the gap-time credit. The sentencing transcript reveals that defendant had been incarcerated in Cumberland County since July 4, 2003. He was ultimately sentenced in Cumberland County on March 4, 2005. Judge Forester credited defendant with "165 days of gap time credit" from March 4, 2005, to August 16, 2005. That credit is not challenged here. Defendant asked the judge for credit for the period from July 4, 2003, to March 4, 2005, even though he admitted that he had "receive[d] that time as jail time credit" on the Cumberland County sentence. The judge refused to increase the credit. We agree with that refusal.

Gap-time credit, required by N.J.S.A. 2C:44-5b(2), is generally understood as intended "to avoid the manipulation of trial dates to the disadvantage of defendants and to put defendants in the same position that they would have been 'had the two offenses been tried at the same time.'" Booker v. New Jersey State Parole Bd., 136 N.J. 257, 260 (1994). Its application has not been free of difficulty and it has been referred to variously as "a judicial nightmare," State v. Guaman, 271 N.J. Super. 130, 135 (App. Div. 1994), and "a riddle wrapped in a mystery inside an enigma." State v. Edwards, 263 N.J. Super. 256, 262 (App. Div. 1993) (quotations omitted).

Whatever its complexities in other areas, we have previously decided, contrary to the position defendant now urges, that the credit for time spent incarcerated while awaiting sentence, required by R. 3:21-8, may not be awarded as gap-credit on a later sentence. Id. at 263-64. We have no need to repeat, or depart from, the analysis and result reached by Edward. Indeed, we have specifically noted that "[t]he term 'gap-time credit' is used because the credit applies to the gap between the sentences." Meyer v. New Jersey State Parole Bd., 345 N.J. Super. 424, 427 (App. Div. 2001) (citing Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988)). See also State v. French, 313 N.J. Super. 457, 462 (Law Div. 1997) (noting that the gap period "is the period during which defendant was incarcerated after, and attributable to, the first sentence" (emphasis added)). Defendant, having received credit for the time spent in jail awaiting disposition of the Cumberland County offense, may not claim the same credit on the Salem County sentences.

 
The convictions and sentences are affirmed; the matter is remanded for the correction of the judgment of conviction on Indictment No. 04-08-00296 to reflect the merger of Count Two into Count One.

This case is a companion to the appeal filed by Dunns's co-defendant, William J. Burden, also decided today.

The judgment of conviction does not reflect the merger of the two counts that was a part of the sentence as revealed by the sentencing transcript.

The Smith residence was not included in this description because Peterson never visited that residence.

We infer this was the result of defendant's arrest in the DuBois robbery.

(continued)

(continued)

16

A-1076-05T4

May 18, 2007