STATE OF NEW JERSEY v. ANTHONY DIGGS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4082-03T44082-03T4

A-4688-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOEAKE JACKSON,

Defendant-Appellant.

_______________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY DIGGS,

Defendant-Appellant.

________________________________________

 

Submitted October 5, 2006 - Decided

Before Judges A. A. Rodr guez, Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 01-01-0266, 01-02-0487.

Yvonne Smith Segars, Public Defender, attorney for appellant Thoeake Jackson (Richard W. Berg, Designated Counsel, of counsel and on the brief).

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

Following a joint jury trial, defendants Thoeake Jackson, also known as "Blondy" and "Raheem Bryant"; and Anthony Diggs, also known as "Squirrel," were convicted of several offenses arising out of the shooting death of Ronald Hardaway. Jackson was convicted of first degree aggravated manslaughter, N.J.S.A. 2C:11-4a; and third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b. The jury acquitted Jackson of conspiracy, murder and possession of a weapon for an unlawful purpose. Jackson moved for a new trial. The judge denied this motion and imposed concurrent terms aggregating twenty-years with a NERA and Graves Act minimum terms.

Diggs was convicted of second degree passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2) and third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b. He was acquitted of conspiracy, murder and possession of a weapon for an unlawful purpose. Then, Diggs was tried by the judge alone on the charge of second degree, convicted persons not to possess weapons, N.J.S.A. 2C:39-7b. The judge found him guilty. Diggs moved for a new trial. The judge denied the new trial motion and imposed concurrent terms aggregating eighteen years with a NERA minimum term. We reverse the aggravated manslaughter conviction against Jackson. We affirm Diggs' conviction, but remand for resentencing in light of State v. Pierce, 188 N.J. 155 (2006) and State v. Thomas, 188 N.J. 137 (2006).

The Proofs

First, there was a joint trial of defendants, which resulted in a mistrial because the jury could not agree on a unanimous verdict. The proofs presented by the State at the second trial can be summarized as follows. Ronald Hardaway was killed on July 2, 2000. He was nicknamed "Big." The nickname came from the song "Mr. Big Stuff." His father testified that on the morning of July 2, 2000, he and his son were working together on a construction site. Stephenson Chandler and others were also working with them that day. They all left early to attend a cookout at the Hardaway home in celebration of the Fourth of July holiday. Hardaway's father testified that his son did not own a gun.

Chandler testified that on the morning of the murder he was working with the victim until about 2:30 in the afternoon. He planned to meet Hardaway on the corner of South Orange and Stuyvesant Avenues. Then they would go to the cookout at Hardaway's father's home. Hardaway was sitting on his bike when Chandler arrived at the corner. The two talked until Diggs suddenly approached with Jackson following him. Diggs told Hardaway that if he caught anyone selling on his turf "he can take them out." Diggs "sucker punched" Hardaway. Hardaway fell off of his bike but got back up and put Diggs in a "choke hold." Chandler heard a gunshot and saw a black gun in Diggs' hand. He saw that Jackson had a "silver gun." As the scuffle continued, Jackson took the black gun from Diggs. When Diggs could get up, Jackson returned the black gun to Diggs. Diggs grabbed Hardaway by the hair and shot him. At some point, Hardaway broke free from the scuffle and ran away, but collapsed in front of a mailbox. Chandler could not recall how many shots were fired. He stayed with Hardaway. Chandler accompanied the police to the station, where he gave a formal statement. Chandler was familiar with both Diggs and Jackson.

Ernest West III testified that at approximately 5:40 PM that day, he spotted Hardaway on his bicycle at the intersection of South Orange and Stuyvesant Avenues in Newark. They talked briefly. Suddenly, Diggs approached Hardaway and said, "you can't clock out of here". Jackson came up behind Diggs. Diggs punched Hardaway off of his bike. Hardaway jumped up and physically engaged Diggs. They both wrestled in front of the bus stop. Then, Diggs lifted his shirt to reveal a black handled gun. As the two wrestled, Diggs' gun went off and apparently struck Hardaway in the leg. Jackson grabbed the gun from Diggs' hand and shot Hardaway. Diggs got up off the ground. Jackson handed the gun to Diggs. Jackson had a firearm of his own, a chrome nine millimeter gun. The pair fired six or seven shots at Hardaway.

Hardaway collapsed in front of a mailbox. Jackson and Diggs fled the scene. West did not notice an injury to Diggs and did not see anything unusual about the way Diggs ran. West remained with the victim. Later, he accompanied the responding police officers to police headquarters. There, he was shown a photographic array and gave his statement to the police. Although it seems that West picked Diggs out of the photographic array, he did not know his name at the time of the shooting. Under cross-examination, West admitted that at a prior hearing, he testified that the gun in Diggs' pants was "shiny chrome," but at trial had testified that the gun was black.

The Essex County Prosecutor's Investigator, Robert D. Harris, testified that he met with Diggs several weeks after the murder. He observed that Diggs was walking with an inconsistent limp. At times, the limp was heavy; at other times less pronounced. Diggs waived his Miranda warnings and completed a waiver form. Diggs gave the following statement:

It was daytime. I was approached by two black males asking me what I was going to do about me being out on the Avenue. I told the one that was on his feet that I didn't want to talk to him. He then told me that something had to give because I was still out there and it was not going to -- it was not going the way they wanted it to. The guy on the bike, BIG, asked me what did I say. I told him that I did not want any problems with him or his friends, but he threatening me with slick talk. When he got back on the bike, I punched him in the face. When he was getting up off the ground, I told him that we could finish the fair fight around the corner, but he said no. He said I will see you later. The guy that was on foot ran around the corner and I left. I then went to my block to hang out, but I returned to the Ave., and I went to the hair salon to see my friend. I went to the pizza parlor to get-a soda for my friend and that when a person came up to me and was asking where I was. I came out of the pizza parlor and he came up to me wanting to fight, but I told him that he did not want to fight before, so he should go ahead. He kept on talking shit at me, but I walked across the street to get away from him. He then followed me across the street, he then followed across the street and I told him to go ahead and leave me alone. He then confronted me and was saying that he could do me right here. I told him to handle your business. He reached for his waist, so I rushed him and that's when he got a shot off. He shot me in the left shin, but I grabbed the gun and we wrestled over it, over it. He then bit me in the shoulder, because I had a little bit more control of the gun than he did. Somehow I got the gun from him and I shot him in the lower part of his body. I think it was in his butt. I then threw him off of me because he was still holing on to me. I then ran to leave the area.

Diggs stated that he did not receive medical attention for the gunshot to his shin. He denied that Jackson was with him on the day of the shooting. He did not learn that Hardaway had died until days later, when he passed a shrine that people had set up on the street where he died. Diggs said that he hesitated to turn himself in because he feared going to jail and being killed there by Hardaway's comrades.

Newark Police Detective Robert O'Connor testified that he responded to the scene of the shooting. When he arrived at the scene, the area had been roped off with police tape and there were projectiles and blood on the pavement. He also went to the hospital and collected the decedent's clothing. He found no narcotics in the decedent's clothing.

Essex County Prosecutor's Investigator Fernard Williams, Jr., also acted as a crime scene investigator. He testified that nine bullet casings were found on the street at the scene of the crime. All casings appeared to have been fired from a .380 automatic RP (Remington Production).

Newark Police Detective Frank J. Ferretra, a ballistics examiner, testified as an expert. He performed a microscopic comparison of the casings retrieved from the scene. He determined that they had been fired from a .380 semi-automatic pistol. Five of the bullets examined were fired from the same firearm.

Essex County Prosecutor's Lieutenant, Stephen Bright, testified as an expert in latent fingerprint analysis. He testified that no fingerprints were taken from the bullets retrieved in this case. The shell cases had been handled by too many people. Therefore, retrieving latent fingerprints from the casings would be virtually impossible. The main component of a fingerprint is water and any latent fingerprint on a bullet would disintegrate after the gun is fired.

Assistant Medical Examiner Lyla Perez, M.D., a forensic pathologist, testified as to Hardaway's cause of death. According to her, Hardaway had six gunshot wounds to his body: two to his right arm; one to the right clavicle; one to his left, upper chest; one to his buttocks; and one to his right thumb. The cause of death was internal hemorrhage due to gunshot wounds to the chest, extremity and buttocks. The gunshot wounds on Hardaway's body did not exhibit the stippling or tattooing normally evident when someone is shot at close range. On the lower left leg she observed small perforations of skin. Inside the leg she discovered small pellets and bleeding.

At the close of the State's evidence, defendants moved for a judgment of acquittal. The judge denied this motion. At a charge conference, Jackson's counsel sought a jury instruction on the lesser-included offenses of aggravated assault and simple assault. The judge denied this request and charged the jury as to both defendants with murder, passion/provocation manslaughter, aggravated manslaughter and reckless manslaughter. He also charged the jury with self-defense and accomplice liability.

After the trial, both defendants moved for a new trial. The judge denied these motions and proceeded to sentencing.

Jackson's Appeal

On appeal, Jackson contends:

THE TRIAL COURT ERRED IN FAILING TO CHARGE LESSER INCLUDED ASSAULTS.

Specifically, Jackson argues that the judge erred in refusing to charge the jury with aggravated assault and simple assault. We agree.

N.J.S.A. 2C:1-8(e) provides that an included offense is to be submitted to the jury where "there is a rational basis for a verdict convicting the defendant of the included offense." A trial judge must charge a lesser-included offense when the facts would justify a conviction for that offense, even when there has been no request by either party for such a charge. State v. Jenkins, 178 N.J. 347, 361 (2004); State v. Purnell, 126 N.J. 518, 531-32 (1992) rev'd on other grounds, 161 N.J. 44 (1999); State v. Clarke, 198 N.J. Super. 219, 224 (App. Div. 1985). This rule permits the jury to return a verdict that conforms to the evidence and relieves the pressure to return an all-or-nothing verdict. Clarke, supra, 198 N.J. Super. at 224.

In State v. Farrell, 250 N.J. Super. 386 (App. Div. 1991), we reiterated the principle that a "[d]efendant is entitled to an instruction as to any included offense for which there exists sufficient evidence for a reasonable jury to find in his favor." Id. at 391. We determined that "[r]eckless conduct resulting in serious bodily injury must be considered as an included offense of second degree aggravated assault because 'it is established by proof of the same . . . facts required to establish the commission of the offense charged.'" Ibid. (citing N.J.S.A. 2C:1-8d(1); State v. Sloane, 111 N.J. 293, 301-03 (1988)). This rational-basis test is a low threshold. State v. Christanos (Arriagas), 102 N.J. 265, 278 (1986). Therefore, when the defendant makes a request "the trial court is obligated, in view of defendant's interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied." Ibid.

Applying these principles to this case, we conclude that defendant was entitled to an instruction on third degree aggravated assault and simple assault. To find a defendant guilty of second degree aggravated assault for causing serious bodily injury to another, the State must prove beyond a reasonable doubt each of the following elements: (1) that the defendant caused serious bodily injury to another; and (2) that the defendant acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life. N.J.S.A. 2C:12-1b. "Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b.

On the other hand, to find a defendant guilty of third degree aggravated assault the State must prove beyond a reasonable doubt each of the following elements: (1) that the defendant(s) caused significant bodily injury to another; and (2) that the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life. N.J.S.A. 2C:12-1b. "Significant bodily injury means bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses," i.e., sight, hearing, taste, touch and smell. N.J.S.A. 2C:11-1d.

Thus, the difference between the second and third degree offenses revolves around whether defendant caused or attempted to cause serious or significant bodily injury. The proofs here could support a jury finding that Jackson's conduct caused significant bodily injury.

Therefore, the possible range of the evidence could support a finding that Jackson inflicted significant, rather than serious, bodily injury on Hardaway. For that reason, the jury should have been instructed to consider third degree aggravated assault as a lesser-included offense.

Finally, in order for the jury to find that a defendant committed a simple assault, the State must prove, beyond a reasonable doubt that the defendant "attempt[ed] to cause or purposely, knowingly or recklessly caused bodily injury to another." N.J.S.A. 2C:12-1a(1). "Bodily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. Once again, the proofs could support a finding that Jackson only caused "bodily injury" to Hardaway with the snake gun rather than "serious" or "significant" bodily injury.

Here, the jury could have found that Jackson had access to the "snake shot" gun, fired and injured Hardaway with that gun if they did not find that he played a part in his death under the accomplice theory presented by the State. Alternatively, they may have found him merely negligent.

Therefore, the evidence as to Jackson presents a viable scenario. The jury should have been charged with the lesser-included offense of aggravated assault because the two charges share the same mens rea of recklessness. Cf., State v. Carroll, 385 N.J. Super. 211, 227 (App. Div. 2006) (holding that passion/provocation manslaughter is a lesser-included offense of murder because the two share the same purposeful or knowing culpability requirement).

Jackson also contends:

THERE WAS INSUFFICIENT EVIDENCE OF APPELLANT'S GUILT AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

We disagree.

Jackson alleged that there was a confrontation between Hardaway and Diggs over drug turf. His role in the confrontation occurred after Diggs and Hardaway had started fighting and he intervened only after Hardaway had Diggs in a choke hold and pinned to the ground. Diggs asked Jackson to take his gun, a .380 caliber handgun. According to Jackson's version, he took out a snake gun and fired non-lethal pellets into Hardaway's leg. He was then able to secure the .380 caliber gun from Diggs. When Diggs got away from Hardaway, Jackson returned the gun to Diggs. Then Diggs fired the fatal shots at Hardaway.

A motion for judgment of acquittal is governed by R. 3:18-1. The judge shall grant such a judgment "if the evidence is insufficient to warrant a conviction." R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Horne, 376 N.J. Super. 201, 208 (App. Div. 2005). In short, the motion is to be denied if after viewing the State's direct and circumstantial evidence in its entirety, and giving the State the benefit of all its favorable testimony and inferences, a reasonable jury could find guilt of the charge beyond a reasonable doubt. Reyes, supra, 50 N.J. at 458-59. After the jury returns a verdict for a lesser-included offense and the defense makes a motion for acquittal, then the lesser offense's sufficiency is tested against the whole record and not simply the State's case. State v. Sugar, 240 N.J. Super. 148, 153 (App. Div. 1990).

Judging the record against this standard, we conclude that the judge properly denied the motion for acquittal. The evidence against Jackson supported an aggravated manslaughter conviction pursuant to a theory of accomplice liability; i.e., Jackson took Diggs' weapon during the struggle with Hardaway, and then returned it to Diggs when Diggs regained the upper hand.

Jackson argues that the evidence cannot sustain a conviction because his gunshot to Hardaway could not have killed him. However, this argument ignores that he helped Diggs during the scuffle. Jackson enabled the death of Hardaway by returning the gun to Diggs. Moreover, the jury could find that Jackson's shot to Hardaway's leg disabled him long enough to allow Diggs to fire the fatal shot.

By the same analysis, we conclude that Jackson's motion for a new trial was properly denied. We conclude that no manifest denial of justice occurred here.

Jackson also contends:

APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE STATE FALSELY ASSERTED AT THE WADE HEARING THAT THE WITNESSES KNEW APPELLANT. THE FACT THAT A WITNESS OVERHEARD OTHERS STATING WHAT THEY HAD SEEN RENDERED THE IDENTIFICATION PROCESS UNRELIABLE. FAILURE OF COUNSEL TO ACT ONCE A WITNESS TESTIFIED THAT HE DID NOT KNOW APPELLANT AND OVERHEARD OTHERS AT POLICE HEADQUARTERS TALKING ABOUT WHAT THEY HAD SEEN CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

Prior to trial, the judge conducted a Wade hearing on identification. Essex County Prosecutor's Investigator, John Brewington and Newark Police Detective Ilidio Ferreira, testified at the hearing. They outlined their procedure in selecting the photographic arrays. After Brewington took Chandler's statement identifying Diggs from the photographic array, he and another detective sought out Ernest West. West also identified Diggs. West said he had seen Diggs in the area for a couple of years.

According to Ferreira, on the day of the shooting, he assembled three photographic arrays, all of which included pictures of Jackson. Ferreira showed the photographic array to West, who identified Jackson without hesitation.

Ferreira testified that he arranged the photographic array, so that Jackson would not be easily distinguishable from the other photographs. The witnesses were separated from one another once they were at the police station.

The photographic arrays themselves were proffered at the Wade hearing. The reliability of the witnesses has not been called into question. All of the witnesses came to the police station of their own free will to report what had happened. A detailed report was not made of the identification process, but a formal statement was taken right after the identification was made.

The judge gave a decision from the bench. He began by reciting the standard, specifically saying that in a Wade hearing, "the defendant must prove by a preponderance of the evidence that the identification procedures used by the police were so impermissibly subjective as to result in a substantial likelihood of misidentification." Based on the testimony of the witnesses, which he credited, and his review of the photographic arrays, the judge found that, "under the totality of the circumstances [] the procedures were [not] impermissibly suggestive."

We are satisfied that the judge followed the applicable legal principles. In a series of cases, the United States Supreme Court has devised a two-part test to determine admissibility of eye-witness identification. Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Our Supreme Court first adopted the federal test in State v. Madison, 109 N.J. 223, 232 (1988) and continues to follow that test today. State v. Herrera, 187 N.J. 493, 504 (2006). First, a court must decide whether or not the procedure was impermissibly suggestive. Ibid. Second, the court will look to whether the objectionable procedure led to a "very substantial likelihood of irreparable misidentification," which is essentially a reliability question. Ibid. at 524 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1248. 1253 (1968)). Even if the identification is impermissibly suggestive, it may still be admitted into evidence if it is reliable. Madison, 109 N.J. at 232.

In State v. Delgado, 188 N.J. 48 (2006), the Court affirmed the conviction of the defendant, although the police report was deficient because the police had kept the photographic array intact and had not fabricated evidence. Here, the photographic arrays remained intact. The detailed testimony of Ferreira as to the identification procedure does not warrant reversal under Delgado. Moreover, we conclude that the judge's findings on credibility are supported by the evidence.

Jackson also contends:

THE TRIAL COURT ERRED IN OVERRULING DEFENSE OBJECTION TO EVIDENCE OF THE VICTIM'S GOOD CHARACTER WHICH WAS IRRELEVANT TO APPELLANT'S GUILT.

We disagree. Specifically, Jackson argues that Hardaway's father's testimony constitutes improper character evidence. Before Hardaway's father testified at trial, the defense counsel objected to the testimony, stating that it had no probative value. The judge stated that the witness's testimony was relevant to set the scene and explain the victim's nickname, "Big." On appeal, Jackson argued that the explanation of the nickname was intended to counter evidence of Hardaway's conduct as a drug dealer.

It is axiomatic that character evidence is admissible to prove conformity therewith. N.J.R.E. 404. One exception to this rule provides and allows:

[E]vidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

[N.J.R.E. 404a(2).]

Character evidence of the victim may be admitted by the prosecution after the defense has presented evidence that the victim was the first aggressor. Thus, "evidence of the victim's character must be offered in a sequence where the prosecutor's evidence follows, in rebuttal, evidence offered by the defendant." Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 404(a)(2) (2006). If admitted, the testimonial evidence must take the form of an opinion. State v. Aguiar, 322 N.J. Super. 175, 182 (App. Div. 1999).

Here, the evidence by Hardaway's father was not in the form of reputation or an opinion. However, Hardaway's father did not testify as to his son's character, or general traits of lawfulness and law-abidingness. Instead, he explained his son's nickname.

We conclude that there was no "palpable abuse of discretion" by the judge's admission of the evidence for its probative value to set the scene and not as impermissible character testimony.

Given our decision to reverse the aggravated manslaughter conviction, we need not address Jackson's contentions that: (1) the disparity in his sentence, compared to that imposed on Diggs "was manifestly excessive;" and (2) Jackson "was denied a fair trial as the result of prosecutorial misconduct." We merely note that the prosecutor's statements with which Jackson takes issue were a proper argument on the evidence, or were cured by a prompt instruction. We note that trial counsel did not object to some of the comments that are now being challenged. Moreover, the prosecutor's comments were balanced by his consistent admonitions that "your memory is really the one that matters" and "it is your recollection of the facts."

Diggs' Appeal

On appeal, Diggs contends:

THE TRIAL COURT'S DECISION TO IMPOSE AN EXTENDED TERM WAS UNJUSTIFIED. IN THE ALTERNATIVE, THE BASE TERM OF 18 YEARS WAS EXCESSIVE.

Specifically, Diggs argues that the trial court's decision to impose an extended term of eighteen years was excessive. In light of the recent decision in State v. Pierce, 188 N.J. 155 (2006), we remand for re-sentencing.

N.J.S.A. 2C:44-3a, the persistent offender statute, provides that upon application made by the prosecutor, a sentencing judge has the discretion to sentence the offender to an extended term if, "[t]he defendant has been convicted of a crime of the first, second or third degree and is a persistent offender." A persistent offender is defined as:

[A] person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

[N.J.S.A. 2C:44-3(a).]

As we determined in State v. Dixon, 346 N.J. Super. 126 (App. Div. 2001), if a defendant meets the statutory definition of a persistent offender, the court must then examine facts related to the issue of "recidivism" without the need for presentation to the jury. Id. at 140. The jury is not needed because these findings do not relate to the present offense or its elements. Pierce, supra, 188 N.J. at 162; see U.S. v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001)("Judges frequently must make factual determinations for sentencing, so it is hardly anomalous to require that they also determine the who, what, when and where of a prior conviction."). Further, in the companion decision of State v. Thomas, 188 N.J. 137, 145 (2006), the Supreme Court held that "a sentencing court may find as fact the existence of a prior conviction for purposes of determining a defendant's statutory eligibility for extended-term sentencing under a mandatory sentence-enhancing statute."

The Supreme Court in State v. Dunbar, 108 N.J. 80 (1987), added additional steps for extended sentencing pursuant to this statute: 1) the sentencing court must determine whether the minimum statutory structure for subjecting the defendant to an extended term have been met; 2) the court must determine whether to impose an extended sentence; 3) it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence; and 4) it must determine whether to impose a period of parole ineligibility. Id. at 89.

In Pierce, the Court revisited Dunbar and held that the Dunbar sentencing procedure must be restated "to set in proper perspective the timing and purpose of the judicial fact-finding related to the need for protection of the public." Pierce, supra, 188 N.J. at 169. After Pierce, a sentencing court must first, review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible, on application for discretionary enhanced-term sentencing pursuant to N.J.S.A. 2C:44-3a. Ibid. Only after the court determines that the defendant is statutorily eligible, then, "the top of the range of sentences applicable to the defendant, for purposes of Apprendi, becomes the top of the enhanced range." Ibid. (emphasis added).

Thereafter, whether the court chooses to use the full range of sentences is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Ibid. Consideration of the protection of the public occurs during this phase of the sentencing process. Ibid.

Applying these principles here, we conclude that the judge sentenced Diggs according to the Dunbar standard. The judge found Diggs to be a persistent offender and eligible for the discretionary extended term of eighteen years. However, there was no clear articulation that Diggs' satisfaction of the statute made him eligible for the top of the range or consideration of whether to use the full range of considerations. Specifically, all of the factors appear to have been considered together by the judge pursuant to Dunbar and not separately as defined in Pierce. Consequently, we conclude that Diggs is retroactively entitled to the new sentencing procedures pursuant to the holding in Pierce, but only with respect of the appropriate sentence within the expanded range of sentences available form the bottom of the ordinary-term to the top of the extended-term range. Pierce, supra, 188 N.J. at 171.

We next turn to Diggs' contention that:

N.J.S.A. 2C:44-3a IS UNCONSTITUTIONAL IN THAT STATE V. DUNBAR REQUIRES A JUDGE TO FIND A FACTOR LEADING TO THE IMPOSITION OF DISCRETIONARY PERSISTENT-OFFENDER EXTENDED-TERM SENTENCES. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, 1, 10.

We disagree.

Diggs contends that his eighteen year extended term must be vacated because N.J.S.A. 2C:44-3a is unconstitutional. Specifically, Diggs argues that it is unconstitutional to require judges to find a factor leading to the imposition of discretionary persistent extended term sentences. Given our decision to remand for re-sentencing, we need not address Diggs' contention. We merely note that in State v. Thomas, 188 N.J. 137 (2006), the Supreme Court declared that the extended-sentence statutory scheme pursuant to N.J.S.A. 2C:43-6(f), "does not contravene defendant's due process and Sixth Amendment jury trial rights because a sentencing court, and not a jury, makes the determination that a defendant has the statutorily required number and type of prior convictions to be eligible for sentencing up to the maximum of N.J.S.A. 2C:43-6(f)'s mandatory enhanced range." Pierce, supra, 188 N.J. at 162-63; Thomas, supra, 188 N.J. at 151-52. N.J.S.A. 2C:43-6(f) provides for a sentence enhancement on the basis of a judicial fact-finding with regard to the finding of prior convictions that is authorized under Apprendi and Blakely. Thomas, supra, 188 N.J. at 151-52.

Finally, Diggs contends:

THE TRIAL COURT FAILED TO ADEQUATELY ANSWER THE JURY'S QUESTION WHEN IT REFUSED TO RECHARGE SELF-DEFENSE OR OTHERWISE PROVIDE AN ANSWER THAT WAS CONNECTED TO THE FACTS OF THIS CASE OR THE DEFENSE PROFFERED.

Specifically, Diggs argues that it was reversible error for the judge not to re-charge the jury with self-defense when they requested that the judge re-explain the murder, passion provocation manslaughter and manslaughter charges. We disagree.

Shortly after the jury was charged they sent a note to the court which stated, "We need to recount the law on murder and manslaughter." Defense counsel requested that the judge re-charge the jury on self-defense. The judge denied the request and asked them to send another note. They sent another note requesting "to be re-charged on murder, passion provocation manslaughter, aggravated manslaughter, and reckless manslaughter," to which the judge then re-charged the jury with the charges they requested.

The Supreme Court has addressed a trial court's duty to explain charges to the jury in State v. Savage, 172 N.J. 374 (2002). There, the Court stated:

It is firmly established that "[w]hen a jury requests a clarification," the trial court "is obligated to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div. 1984), certif. denied, 97 N.J. 650, (1984). Further, if the jury's question is ambiguous, the trial court must clarify the jury's inquiry by ascertaining the meaning of its request. State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995).

[Id. at 394-95.]

However, there is no requirement that the jury be re-read the entire charge when they had requested only a definition of manslaughter and reasonable provocation. State v. McClain, 248 N.J. Super. 409 (App. Div.), certif. denied, 126 N.J. 341, 421 (1991). We noted in McClain, that the "failure of the jury to ask for further clarification or indicate confusion demonstrates that the response was satisfactory." Ibid; see also State v. Gallicchio, 44 N.J. 540, 549 (1965) (finding no error in the judge's refusal to re-instruct the jury on self-defense when the jury requested a re-definition of first degree murder, second degree murder and manslaughter.)

In this case, the jury asked to be re-charged on murder and manslaughter. The jury did not ask for a self-defense charge. Obviously, it had rejected the self-defense scenario and was deciding which degree of culpability applied to Diggs' conduct. Hence, as we stated in McClain, it would have been inappropriate for the judge to sua sponte charge self-defense. We are therefore satisfied that the judge followed the applicable legal principles. There was no abuse of discretion in the judge's declination of defense counsel's request that the jury hear the self-defense charge a second time along with the repeated manslaughter instructions. We conclude that no manifest denial of justice occurred here.

Summarizing, the aggravated manslaughter conviction against Jackson is reversed and remanded to the Law Division, Essex County for a new trial. In all other respects, the judgment of conviction as to Jackson is affirmed. The judgment of conviction as to Diggs is affirmed, but the sentence is remanded to the Law Division, Essex County, for resentencing for reasons consistent with this opinion.

Affirmed in part, reversed in part. We do not retain jurisdiction.

 

NERA, No Early Release Act, N.J.S.A. 2C:43-7.2.

Graves Act, N.J.S.A. 2C:43-6c & d.

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

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

(continued)

(continued)

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A-4082-03T4

March 12, 2007