STATE OF NEW JERSEY v. JUAN TURNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2998-04T42998-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN TURNER,

Defendant-Appellant.

_______________________________________________________________

 

Submitted September 4, 2007 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 03-11-3715.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Juan Turner was indicted by the Essex County grand jury and charged in count one with murder in the first degree, in violation of N.J.S.A. 2C:11-3a(1) or (2); in count two with third degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b; in count three with second degree possession of a handgun with the purpose to use it unlawfully, in violation of N.J.S.A. 2C:39-4a; in count four with third degree terroristic threats, in violation of N.J.S.A. 2C:12-3a; and in count five with second degree witness tampering, in violation of N.J.S.A. 2C:28-5.

Prior to trial, the State dismissed the last two counts of the indictment and the matter was tried before a jury as to the three remaining counts. After trial, defendant was found guilty of all three charges and, on September 27, 2004, after denying defendant's motion for a new trial, the judge imposed sentence. After merging the third count into the first count, the judge sentenced defendant on the murder conviction to life imprisonment with an 85% period of parole disqualification pursuant to the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2. The judge advised defendant that he would be eligible for parole in approximately sixty-three years and eight months. On count two, defendant was sentenced to five years imprisonment to run concurrent to the sentence on count one. The appropriate penalties were also imposed.

On appeal, defendant raises three points.

POINT I

THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE REQUEST FOR A MISTRIAL AFTER HE MISINFORMED THE JURY AS TO WHAT THE DEFENSE ATTORNEY HAD SAID IN HIS SUMMATION.

POINT II

THE JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

THE DEFENDANT'S SENTENCE WAS EXCESSIVE.

In a supplemental pro-se brief, defendant raises one additional point.

POINT I

NUMEROUS ERRORS BY THE COURT AND MISCONDUCT BY THE PROSECUTOR DURING THE COURSE OF PROCEEDINGS ROSE TO THE LEVEL OF DEPRIVING DEFENDANT OF HIS U.S.C.A. SIXTH AMENDMENT [] RIGHT TO A FAIR TRIAL, AND HIS FOURTEENTH AMENDMENT [] RIGHT TO DUE PROCESS.

After consideration of these contentions in light of the record and applicable legal standards, we affirm.

I.

The testimony at trial revealed that in the early morning hours of July 16, 2003, defendant, who was also known as "True," was riding in a burgundy van driven by Jihad Glover. Also present in the van were Jazaar Redding, Eugene Woodson, and another youth simply known as Andrew or "Drew." Glover and defendant were affiliated with the Crips street gang, and, while it is not entirely clear from the record, it would appear the others in the van may also have been members of the gang.

Redding wanted to buy some "loosies" -- single cigarettes sold outside their package -- so Glover turned into a gas station at the intersection of Union Avenue and Nye Avenue in Irvington. Redding exited the van and approached the outside booth to purchase the cigarettes as the victim, Dickens Baptiste, approached the gas station on his bicycle.

Redding knew Baptiste from the neighborhood and knew that the red bandana Baptiste wore signified that he was a member of the rival Bloods street gang. The men exchanged some words, without incident, and Redding re-entered Glover's van as Baptiste rode his bike away from the station.

Glover testified that earlier in the evening defendant had become quite upset when Glover reported there had been a shooting and someone, who defendant believed may have been his cousin, was injured. Defendant saw Baptiste at the gas station, and when Redding returned to the van, he asked, "Why we let him go?", and stated "I wanna push him." Glover testified this was street slang meaning "I'm gonna kill him."

Although both Glover and Redding tried to calm defendant and pled with him to leave Batiste alone, as the van prepared to leave the gas station defendant exited and ran in the direction of Baptiste who by this time had turned down Nye Avenue. Defendant came upon Baptiste as he was trying to fix the chain on his bicycle. Without any apparent physical altercation, defendant fired a single shot at close range into Baptiste's chest.

He then ran back into the van, complaining that the 9 mm. gun had jammed and the spent shell casing was not ejected. Defendant told the others in the van, "[D]on't nobody say nothing about this." Glover then drove everyone home.

When police responded to the scene of the shooting, Baptiste was still alive, though he expired a short time later at the hospital. The investigation revealed the existence of surveillance cameras at the gas station, and, after reviewing the video tape, police were able to identify the van which was owned by Glover's father. Eventually, the individuals in the van were identified and some gave statements to the police.

The State's case, however, ultimately rested on the testimony of Redding, Glover and Woodson, all of whom testified that they saw defendant shoot Baptiste. No weapon was ever recovered, no forensic evidence linked defendant to the crime, and he gave no statement to the police.

Defense counsel impeached the credibility of the State's eyewitnesses by repeatedly questioning them about inconsistencies between their testimony and their prior statements to the police. He elicited the fact that Glover, who originally told the police he did not know who shot Baptiste, was himself charged with the murder; however, after he gave a subsequent statement incriminating defendant, the charges against Glover were no-billed by the grand jury.

Although defendant did not testify, he did produce a witness, Kason Miles, who testified that Glover had told him that another person, not defendant, had committed the murder. Glover denied this and denied knowing Miles.

After being charged on the law by the judge, the jury began its deliberations. Over the next two days, the jurors requested the read back of the testimony of nearly every State's witness, and they also requested to be instructed again on several legal principles. Ultimately, the jury returned the guilty verdicts referenced above.

II.

Defendant argues the judge erred in refusing to grant his motion for a mistrial. While the entire trial was, as the judge noted, a "spirited" affair, marked by sharp confrontations between the judge and both attorneys, the following exchange during the defense summation provides the focus for defendant's contention.

[Defense counsel]. I made a list of the lies that were told to you from that stand and there were a lot of them. What [do] you do with those lies? You're gonna hear a charge from the Judge, it's called false-in-one, false-in-all. And it basically says to you that --

[The Judge]. Mr. Bio, I'll tell them what the law is.

[Defense counsel]. Okay. Listen for the false-in one, false-in-all charge and that's exactly what it means. It talks about --

[The Judge.] Mr. Bio, I'll tell them what the law is.

In his charge, the Judge read to the jury the model criminal jury charge, "False-in-one, False-in-all." Near the end of a day of deliberations, the jury submitted a note which read,

The defense attorney mentioned in his summation a statement truth in one, truth in all, or something to that effect. Is there such a law? If so, please explain. Thank you.

The following day, the judge advised both attorneys he was going to read the "instruction relating to false-in-one, false-in-all." Neither objected. The judge commenced the re-charge by reiterating that "if [the attorneys] do make statements about the law and they're in conflict with my instructions, then you must disregard them." He then re-read the model criminal jury charge. Finally, the judge noted,

I trust that that instruction is responsive to what your inquiry is, although the labeling of it by the attorney may not have been consistent with what I previously told you.

The judge then excused the jurors to continue their deliberations.

A heated exchange immediately followed between defense counsel, who objected to the judge "embarrass[ing] [him] in front of the jury by suggesting that [he] had mislabeled false-in-one, false-in all," and the judge, who ruled that counsel's use of the "expression false-in-one, false-in-all, [] was improper." Defense counsel moved for a mistrial which the judge promptly denied without argument.

We note that "[t]he decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citations omitted), cert. denied sub nom., Harvey v. New Jersey, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). "An appellate court should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Ibid. We will not disturb a trial judge's ruling on a motion for a mistrial unless it presents an abuse of discretion resulting in "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969).

It is axiomatic that the court, not counsel, bears the responsibility for providing accurate legal instructions to the jury. State v. Savage, 172 N.J. 374, 387 (2002). We note that the model criminal jury charge does not include the words, "false-in-one, false-in-all," nor does utilizing the verbal short-hand of that maxim accurately convey the substance of the charge. In fact, in this case, the jury's question demonstrates how the use of the phrase alone could cause confusion.

The judge sensed this and tried to dispel any misunderstanding caused by the instructions he was providing, and the label defense counsel attached to them. We cannot conclude that the judge's comments disparaged defense counsel nor did they accuse him of "mislabeling" or misstating the law. Therefore, we conclude that the judge did not mistakenly exercise his discretion by denying the motion for a mistrial, and we find no basis to reverse defendant's conviction on this ground.

In his pro-se supplemental brief, defendant argues that the judge should have granted a mistrial based upon the prosecutor's improper cross-examination of the defense witness, Kason Miles. In an exchange with Miles, the prosecutor asked whether he was facing drug charges when he gave his statement to the police. The judge immediately interrupted the questioning, and advised the jury, "That's struck. Disregard it, ladies and gentlemen."

Outside the presence of the jury, defense counsel moved for a mistrial, noting that the prosecutor's question violated the judge's earlier explicit ruling that forbid inquiry into the nature of the charges Miles was facing. The judge denied the motion, finding the prosecutor's question to be improper but not in willful violation of the court's earlier ruling. The judge then agreed to give a curative charge to the jury, but defense counsel, after some consideration, requested that no charge be given at that time or later. Rather, he expressed a desire to rely upon general instructions given by the judge as part of his final charge to the jury.

We find no basis to reverse defendant's conviction on these grounds. The judge immediately issued a curative instruction to the jury and struck the question. Defense counsel, when given the opportunity, declined any further specific instruction. The exchange simply did not prejudice defendant's case.

Lastly, defendant contends that that the jury verdict was against the weight of the evidence because the State's case rested solely on the testimony of the three eyewitnesses, Redding, Glover, and Woodson, all of whom gave prior inconsistent statements to the police. He argues the trial judge should have granted his motion for a new trial on this ground.

We find this contention to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We only note that a motion for a new trial based upon the insufficiency of evidence should only be granted when "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. "[T]he objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). Here, the State produced three eyewitnesses to the murder, all of whom knew defendant, and all of whom were with him immediately before and after the shooting. Considering this substantial evidence, and the jury's ability to assess each witness's credibility, we cannot conclude the trial judge committed any error in denying defendant's motion for a new trial.

III.

Finally, we consider defendant's argument that the trial judge erred in finding the existence of certain aggravating sentencing factors, erred in not finding the existence of certain mitigating sentencing factors, and otherwise imposed a sentence that was excessive. We disagree with these contentions and therefore affirm the sentence imposed.

The trial judge found aggravating factors one -- the nature and circumstances of the offense were especially heinous; three -- the risk that defendant was likely to commit another crime; five -- a substantial likelihood that the defendant was involved in organized criminal activity; six -- the extent of defendant's prior criminal record and the seriousness of the offenses for which he had been convicted; and nine -- the need to deter the defendant and others. See N.J.S.A. 2C:44-1a(1),(3),(5),(6), and (9). He found no mitigating circumstances. N.J.S.A. 2C:44-1b.

Defendant argues that the judge erred by finding the existence of aggravating factor one because all homicides are, by their nature, "destructive and cruel," and there was "nothing about this one which called for a life sentence." He contends that his prior criminal record was minimal and did not support a finding of the existence of aggravating factor three. Defendant further argues that the judge's conclusion that no mitigating sentencing factors existed ignored defendant's youth -- he was twenty-two years old when sentenced -- and the fact that he believed his cousin had been shot earlier in the evening by rival gang members, thus mitigating the seeming premeditation of the shooting of Baptiste.

However, the judge noted that defendant had a prior conviction for possession of a handgun and now stood convicted again of an offense involving a firearm. He further described in detail the events leading up to the murder likening them to "hunting" or "sport," and noted that defendant's cohorts pled with him not to shoot Baptiste, who the judge characterized as defendant's "prey." The judge further concluded that defendant's "activities were related" to his "organized gang" affiliation.

The judge took note of defendant's age; however, he also recognized defendant's prior conviction and his resistance to the court's "intervention." As to defendant's contention that his actions were impulsive and brought about by events that occurred earlier in the evening, we note that the judge charged the jurors as to passion-provocation manslaughter. However, they rejected this claim by returning a guilty verdict as to knowing and/or purposeful murder.

Our Supreme Court has explained

The role of appellate courts in reviewing sentences is to determine: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.

[State v. Megargel, 143 N.J. 484, 493 (1996).]

Thus, we will "not substitute [our] own judgment for that of the sentencing court." Id. at 493-94.

Undoubtedly defendant's sentence on the murder conviction, the maximum that could be imposed, is harsh. However, given the nature and circumstances of this crime, as well as all the other factors considered by the trial judge, we cannot conclude that there was a clear abuse of discretion. We therefore affirm defendant's sentence.

Affirmed.

 

(continued)

(continued)

14

A-2998-04T4

September 14, 2007