STATE OF NEW JERSEY v. DEAN LEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3770-04T43770-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEAN LEE,

Defendant-Appellant.

_______________________________

 

Submitted January 29, 2007 - Decided May 10, 2007

Before Judges Lintner, S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, 01-05-1497.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In May 2002 a Camden County Grand Jury indicted defendant with first-degree murder in violation of N.J.S.A. 2C:11-3(a)(1), (2) (Count One); second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (Count Two); third-degree unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5(b) (Count Three); first-degree conspiracy to commit murder in violation of N.J.S.A. 2C:5-2 (Count Four); and second-degree possession of a weapon by a person convicted of certain enumerated crimes in violation of N.J.S.A. 2C:39-7 (Count Five). Defendant was tried on the first four counts initially. At the close of the State's case, defense counsel successfully moved for dismissal of the conspiracy count. The jury then returned a guilty verdict on Counts One, Two, and Three. As required, Count Five was tried separately before the same jury, resulting in a guilty verdict on that count as well.

In April 2004 the judge sentenced defendant to (a) fifty-five years in state prison with a thirty-year term of parole ineligibility on the first-degree murder conviction; (b) nine years with a three-year period of parole ineligibility on the second-degree possession of a weapon conviction, which was to run concurrent to count one; (c) five years with a two-year period of parole ineligibility on the third-degree possession of a handgun, also concurrent; and (d) nine years with a three-year period of parole ineligibility on the second-degree certain persons not to possess, consecutive to the first-degree murder conviction.

We permitted defendant to proceed with this appeal, which was filed out of time. We affirm all four convictions, but remand for resentencing on Count Five pursuant to State v. Natale, 184 N.J. 458 (2005) (Natale II), and for merger of Count Two with Count One for sentencing purposes pursuant to State v. Diaz, 144 N.J. 628 (1996).

I.

These are the relevant facts supporting the verdict. On March 22, 2000, between 8:00 p.m. and 8:45 p.m., the murder victim, Santiago Peralta, a drug dealer, arrived at the home he shared with Sixta Galindez and their three children. Peralta had several cell phone conversations while at home, the last occurring just before 9:40 p.m. when he was leaving the house carrying a plastic grocery bag. Peralta appeared nervous to Galindez, but told her that he would be right back. Cell phone records revealed a series of calls between Peralta and Damon Frazier, who was affiliated with the Bella's Alley drug set run by Timothy Frazier, Damon's brother. Those calls initiated by Peralta occurred at 8:45, 9:12, 9:32 and 9:51 p.m.

At 9:53 p.m. Camden City Police Officer Terrell Watkins was dispatched to the area of Seventh and Spruce Streets in Camden. When he arrived at the scene he saw a red, four-door, Ford Tempo with both front doors open, stopped in the middle of the intersection in contact with another vehicle. Peralta had an obvious gunshot wound to the head and was lying in the middle of the street, four to six feet away from the driver's side of the red Tempo. In his left hand, Peralta held a semi-automatic weapon "still in action." On the ground between Peralta and the Tempo were a cell phone and a large, powdery brick that appeared to be cocaine. Of the five cartridges found at the scene, only one was discharged from the gun Peralta was holding. One of the remaining four cartridges was found on the street by the driver's door. The others were in the Tempo, one on the left front seat, one on the right front floor, and the last on the right rear floor. All four of these cartridges were fired from the same weapon, as were the two bullets that were retrieved from Peralta's body. Two other bullets, also from the same weapon, were recovered from the driver's door. All of the ammunition was .45 caliber.

Investigator Kevin Kellejan also was dispatched to the crime scene. After determining that the owner of the Tempo was Sixta Galindez, he went to her house. She consented to a search of both her house and her Tempo. In the house Kellejan found plastic bags, acetone, lactose, ammunition, a revolver under a mattress, and a thousand dollars in cash hidden in a crib. He then "canvassed" the neighborhood of the crime scene, during which he spoke with Leon Watson and Glen Bowe. After speaking with Bowe, Kellejan interviewed Darren Johnson about the homicide.

Darren Johnson was an eyewitness to the shooting. Johnson had been visiting his friend Glen Bowe, who lived at 739 Spruce Street, during the evening of March 22, 2000. He was familiar with the neighborhood and knew that Bella's Alley was a place where drug activity took place. Johnson was standing outside Bowe's house when he saw a red car pull up and a Hispanic man, later identified by police as Peralta, get out and go into an alley. Johnson had seen Peralta in the neighborhood previously. After ten or fifteen minutes Johnson heard arguing and cursing coming from the alley, and someone, who sounded to Johnson like an African-American male, said, "If we owe you something, then where is the stuff at?" Johnson then saw Peralta run out of the alley and try to get into the passenger side of the red Tempo. When he could not open the door all the way, Peralta ran around to the driver's side and got in. Two men followed Peralta out of the alley. One of the men was defendant, whom Johnson also knew from the neighborhood and whom he later identified in a police photo array in April 2000 and again at trial. Defendant was dressed in dark sweatpants and a hooded sweatshirt, with the hood down.

Peralta drove away, but when he looked back, he hit and bounced off some parked cars. Johnson walked to the corner of Seventh and Spruce Street. The Tempo continued across the intersection and crashed again. Defendant and his companion ran up to the car; defendant stood at the passenger side and the other man went to the driver's side. Peralta tried to get out of the car. Johnson then saw three flashes and heard three gunshots; two flashes came from the driver's side and one from the passenger's side. Both shooters were firing towards the car. The shooters then started walking towards Johnson when a black Nissan Maxima pulled up. Johnson had seen that car in the area before and recognized the driver as Randy. Defendant and his companion, whom Johnson saw holding a nine millimeter handgun, got into the Maxima and Randy then drove away.

Johnson walked away but returned to Bowe's house ten or twenty minutes later to see if Bowe was all right. On his way, he saw defendant and a couple of other men on the basketball court; defendant had changed his clothes. Defendant said, "Hey, Darren, how are you doing?" Johnson did not respond. When he got to Bowe's house, they only talked about the accident, but the next day Johnson told Bowe he had seen the shooting.

A second eyewitness to the shooting by and large corroborated Johnson's account of the events. Seventeen-year-old Kimberly Walker was riding in a car with her father, Leon Watson, her mother, and a friend on Seventh Street. The Walker family lived at 722 Spruce Street and was returning home. She saw a red car, which had been by Bella's Alley, swerve toward them and then pass them going in the other direction. Just then she saw defendant, whom she recognized from the neighborhood, run out of Bella's Alley and run up the street toward the red car. She then heard the red car crash into a parked van. Her father turned around and drove back toward the crash site.

Walker saw defendant standing alone near the opened passenger door. She then heard two or three gunshots while defendant continued to stand next to the red car. Defendant then walked to the corner of Seventh Street, right across from where Walker's father parked his car.

Walker then saw a black Nissan Maxima pull up; she recognized the car as belonging to someone named Randy, though she did not see Randy that night. Defendant got in the back of the Maxima and it drove away; there were a driver and passenger in the front seat as well. After the Maxima left, Walker and her father went over to the crashed Tempo. She saw a man lying in the street; he had been shot in the head.

About a half hour after the shooting, Walker saw defendant walk by her house with Damon Frazier, whom she knew better than defendant, and a man she knew only as "Boo Bop," but whose name was Tyhan Brown. She had not seen Damon Frazier or Tyhan Brown at the scene of the shooting. Though the police were still in the area, Walker did not tell them what she had seen; she was afraid. However, when the police came to her house on May 24, 2001, she agreed to give a statement, and she identified defendant from a photo array. The police interviewed Walker one week after defendant made a voluntary statement to the police in the presence of his attorney.

Defendant told the police that he had been at the Maple Shade apartment of his girlfriend, Dorian Baker, at the time of the shooting. He also told them that Damon Frazier arrived at Baker's apartment and told defendant that he and Tyhan Brown were responsible for the shooting. Defendant claimed that Frazier had told him that Peralta had once short-changed Frazier on a drug deal. Defendant supplied details of the incident, which he claimed were told to him by Frazier.

At trial defendant testified that on the night in question he drove to the Garden State Correctional Facility in Yardville to visit an inmate, William Burch. Accompanying him was Terrence Woods, also known as Polo D. Ghetto. Visiting hours were from 7:00 to 9:00 p.m., and they stayed until about 8:55 p.m., when they checked out and walked to the parking lot, stopping at a pay phone so that defendant could call his other girlfriend. Defendant and Woods then drove back to defendant's apartment in Maple Shade, where he was living with his baby and his baby's mother, Dorian Baker; they arrived between 9:55 and 10:05 p.m. Defendant testified to his conversation with Damon Frazier and called various alibi witnesses at trial. Nonetheless, the jury convicted defendant of the crimes charged.

On appeal, defendant raises the following issues for our consideration:

POINT I - DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE STATE'S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION REGARDING INDIVIDUALS WHO SUPPOSEDLY IMPLICATED DEFENDANT VIOLATED THE DISCOVERY RULES AND DEFENDANT'S RIGHT TO A FAIR TRIAL PURSUANT TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

POINT II - DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE TESTIMONY LEADING THE JURY TO BELIEVE THAT A NON-TESTIFYING WITNESS PROVIDED THE POLICE EVIDENCE OF DEFENDANT'S GUILT CONSTITUTED INADMISSIBLE HEARSAY AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION.

POINT III - DEFENDANT'S SENTENCE WAS EXCESSIVE AND THEREFORE MUST BE VACATED. (Partially Raised Below).

A. The Sentences Imposed Violated the Sixth and the Fourteenth Amendments of the United States Constitution. (Not Raised Below).

B. A Consecutive Sentence Should Not Have Been Imposed for the Certain Persons Not to Have Weapons Conviction.

POINT IV - THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE MERGED WITH THE MURDER CONVICTION.

II.

The first discovery violation advanced by defendant relates to testimony given by Kellejan on direct examination. He testified that when he spoke to Darren Johnson in April 2000, Johnson told him that he had seen defendant at the scene. Kellejan then showed Johnson a photo array that included defendant, and Johnson picked out defendant's photo. On cross-examination defense counsel probed the inclusion of a photograph of defendant in the array. Counsel established that Kellejan did not connect defendant to this incident until some sources led the police to two persons, defendant and Tyhan Brown.

Q. But by the next day Dean Lee's name was not known to you in connection with this case in any way, correct?

A. No, we had information from a couple of sources that led us to two other individuals, two individuals, one of them being the defendant as far as the name.

Q. Other sources?

A. Yes.

Q. And did you detail anywhere in any report that you've written that you had information from any other source concerning Dean Lee?

A. They were confidential information [sic], all law enforcement related.

. . . .

Q. So this is information that may or may not be relevant to this case that the defense never knows about, correct, because you don't put it in your report?

A. That's correct, I don't put that type of information in my report.

Q. And whether or not that person would have information that may be mistaken, information that may tend to show that it's not the defendant, could be somebody else, whether or not that person has a grudge against Dean Lee, nobody knows because it's not in your reports; is that right?

A. It was from several sources, so it wasn't.

Q. Good. Who are the sources?

A. They were law enforcement sources related and also people in the street.

Q. Who?

A. I don't know the names, sir.

Defendant sought a mistrial on the ground that the existence of the sources had never been disclosed to the defense, and he had no way of knowing whether those sources were "confidential" or not. He asked for a mistrial because even if the identities were disclosed now, he had already been prejudiced by preparing his case "in a certain way," and he now was compelled to meet a case "which is obviously formulated on the basis of informant testimony and I have no clue of that going in." The prosecutor informed the judge that the sources were not confidential ones subject to formal pretrial disclosure, but were merely reports gathered by investigators from people on the street.

The judge decided to question Kellejan further, out of the jury's presence, about the nature of the information that had pointed him to defendant. Kellejan testified that he had been told by two people, whose names he did not know, that they had "heard" on the street that defendant and Tyhan Brown were involved in the shooting. He stated that neither of those people was a "registered" informant. Kellejan did not mention them in his written report because they had requested anonymity, and Kellejan did not "want them to be exposed to potential problems."

Kellejan also stated that another source of information about defendant was Captain Bowen of the Camden County Prosecutor's Office, who told Kellejan that defendant might be involved in the murder. Although Kellejan did reference him in his report, the report did not say that Bowen had mentioned defendant. The judge then required Bowen to appear the next trial day. Captain Bowen testified that one or more of his investigators had reported back to him that "the word . . . from people on the street" was that defendant was involved in the shooting. He confirmed that no information was received from "confidential informants." No record existed of the people who had identified this defendant. Bowen called Kellejan to report what he had heard, so that Kellejan could follow up. The judge denied the application for a mistrial and found that no discovery violation had occurred. However, he gave the jury a limiting instruction with respect to Kellejan's testimony:

Now, this testimony may not be used by you to establish that the defendant was a perpetrator of this crime or that the defendant has done anything wrong at all, but you may use this testimony only to explain why the defendant's picture appeared in photo arrays utilized in a further investigation.

Nor should the fact that these unidentified sources were referred to as confidential sources confer any additional weight or credibility to the information conveyed or to the arrays composed, the photo arrays composed and presented to the witnesses.

He reiterated that caution in his final charge.

Defendant contends that this issue is controlled by State v. Cooper, 301 N.J. Super. 298, 305-06 (App. Div. 1997), and State v. Wright, 312 N.J. Super. 442, 453-54 (App. Div.), certif. denied, 156 N.J. 425 (1998), both holding that a defendant's right to a fair trial demands that the existence of a confidential informant be disclosed before trial, so that the trial court may decide whether the identity of the informant must be revealed or instead withheld as privileged under N.J.R.E. 516. Defendant contends that the failure to provide this discovery was not harmless, as "the non-disclosure impeded his formulation of a proper defense." Defendant also contends that the mandate of State v. Bankston, 63 N.J. 263 (1973), was violated by Kellejan's testimony.

Neither Cooper nor Wright is controlling, because both cases dealt with a known confidential informant. Here, there was no suggestion that the informants were persons other than those who had overheard talk on the street that defendant had been "involved." The information linking defendant to the crime was only a "tip" to police early in the investigation. Such indirect information from people not involved in the crime are not subject to disclosure unless the defendant can show that the information was essential to the defense. State v. Milligan, 71 N.J. 373, 387-390 (1976); State v. Williams, 356 N.J. Super. 599, 604-05 (App. Div. 2003). No such showing has been made here.

Bankston, too, was not violated. There, our Supreme Court delineated the conditions for admissibility of an officer's hearsay testimony about how he came to focus on a particular suspect:

It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so "upon information received." Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule.

[Bankston, supra, 63 N.J. at 268 (citations

omitted).]

Bankston is distinguishable on two grounds. First, the officer in Bankston testified that a third person told him that the defendant would be in a certain tavern with drugs in his possession; based on the tip that the officer located the defendant and arrested him for drug possession. Id. at 266-67. In this case the informers merely said that defendant "may be involved in this particular incident." Second, the hearsay in Bankston was elicited by the State on direct examination and, thus, helped the State carry its burden of proving the defendant's guilt. Id. at 265. Here, it was defense counsel who opened the door by inviting the testimony on cross-examination of Kellejan.

The facts before us come within the scope of State v. Branch, 182 N.J. 338, 352 (2005). The Supreme Court recognized an exception to the rule in Bankston when it is "the defendant who opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive. In such a circumstance, the officer might be permitted to dispel that false impression, despite the invited prejudice the defendant would suffer." Ibid. This exception applies here because the testimony was elicited by defendant in an attempt to show that Kellejan acted arbitrarily when he included the photograph of defendant in the array but did not include a photograph of Frazier. In any event, any error was harmless because defendant was known to Walker and Johnson and they both testified that they saw him standing by Peralta's car when the shooting occurred.

III.

Defendant raises multiple concerns respecting his sentence. First, he asserts that the sentence imposed on the murder conviction was excessive. Second, he contends that the sentence for the conviction on the charge of certain persons not to have weapons should have been run concurrent to his sentence on the murder conviction. And third, he argues that the conviction of possession of a weapon for an unlawful purpose should have merged with the murder conviction. The State concedes this latter point.

At sentencing, the judge found aggravating factors three, the risk of reoffense, N.J.S.A. 2C:44-1(a)(3); five, the substantial likelihood that defendant was involved in organized crime, N.J.S.A. 2C:44-1(a)(5); six, the extent of the defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6), and nine, the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9).

Defendant asserts that aggravating factor five should not have been considered because the facts on which this factor was predicated were not determined by a jury, citing Natale II, supra, 184 N.J. at 466; Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403, 412 (2004); and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000) (holding that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt").

As the State correctly points out, the Apprendi line of cases has no application to the sentence imposed on a murder conviction because there is no presumptive term. State v. Abdullah, 184 N.J. 497, 507 (2005). Defendant here, "like every murderer, knows he is risking life in prison," and the sentencing judge may rely on any facts he or she deems important to the exercise of the discretion accorded a judge imposing sentence for a murder conviction. Id. at 508 (quotations omitted).

We must affirm a sentence so long as (1) the sentencing guidelines were followed, (2) the aggravating and mitigating factors considered were supported by credible evidence, and (3) the sentence is not "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). Here, the guidelines were followed, there was credible evidence to support the statutory factors cited by the judge, and the sentence on the murder conviction was not clearly unreasonable. There is no reason to disturb it.

We are constrained to come to a different conclusion with respect to the sentence imposed for the conviction of certain persons not to have weapons. Factor five was not determined by a jury and the sentence imposed was above the then-existing presumptive sentence; as a consequence a remand is mandated by Natale II.

This leaves only the issue of the consecutive term on the certain-persons weapons conviction. Defendant asserts that the sentencing judge failed to consider all of the criteria mandated by State v. Yarbough, 100 N.J. 637, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), in deciding whether to impose a consecutive rather than a concurrent term.

Although the consideration of these criteria was not reflected on the record of the sentencing, we perceive no error in the conclusion that the sentences should be consecutive. This weapons offense was independent of the murder, it involved entirely separate threats of violence to the public, and it was committed prior to the murder. The public at large, rather than only Santiago Peralta, is particularly harmed by felons possessing weapons. Moreover, as the judge noted, this was defendant's second certain-persons weapons conviction, and it therefore was inappropriate to treat it as a "free crime" by imposing a concurrent sentence. See, Yarbough, supra, 100 N.J. at 643.

Affirmed in all respects save the remand for resentencing in accordance with this opinion.

 

Damon Frazier died on August 18, 2000, five months after the murder that is the subject of this appeal.

An autopsy of Peralta showed six gunshot wounds to the chest, back, buttock, knee, and a fatal shot to the head. There was no evidence that the head wound was self-inflicted, as there were no signs that the shot was fired at close range.

Randy Wheeler died on October 26, 2000, seven months after Peralta was killed.

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A-3770-04T4

May 10, 2007