STATE OF NEW JERSEY v. HEMMINGWAY SAISI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6177-04T46177-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

HEMMINGWAY SAISI,

Defendant-Appellant/

Cross-Respondent.

_______________________________________________________________

 

Submitted December 19, 2006 - Decided March 7, 2007

Before Judges R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 1077-06-04.

Yvonne Smith Segars, Public Defender, attorney for appellant/cross-respondent (Michael C. Kazer, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent/cross-appellant (Kelley W. Lavery, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Hemmingway Saisi was charged in Hudson County Indictment No. 1077-06-04 with first degree murder, N.J.S.A. 2C:11-3a(1), (2) (count one); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts two and four); third degree aggravated assault, N.J.S.A. 2C:12-1b(2) (counts three and five); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count six); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count seven).

After a heated phone conversation between Jeffrey Sheppard and defendant, Sheppard asked a friend, Corey Denis, to drive him to defendant's home in Jersey City. When Sheppard, Denis, and James Clark arrived at defendant's home, he was standing on the front porch. Sheppard and defendant got into an argument that escalated into a physical confrontation. In their struggle, a knife appeared, and Denis yelled, "He's got a knife, he's got a knife."

Defendant swung the knife toward Denis, cutting him in the hand and leg, and then swung at Sheppard, stabbing him in the upper right thigh. Sheppard yelled, "He stabbed me, he stabbed me." Sheppard attempted to get away from defendant, but fell on the ground. Defendant chased Clark and Denis with the knife, then returned to stand over Sheppard, and stabbed him in the chest. When Clark attempted to assist Sheppard, defendant chased him away. Defendant then approached Denis, who was lying on the ground, and attempted to stab him in the chest, but missed.

At this point, Katrese Jackson, who knew Clark and Denis, was driving by and saw Clark trying to pick Denis up off the ground. She pulled over, allowed Denis to enter the car, and drove away. Clark then ran towards his grandmother's home nearby.

Jersey City Police Officer Christopher Monahan responded to a report of a double stabbing at 148 Old Bergen Road and observed defendant standing in the street. Defendant said "he's over there" and pointed toward Bartholdi Avenue. Monahan then saw Sheppard on the ground in the middle of the street on Bartholdi Avenue, bleeding profusely from his leg and stomach. Monahan rendered first aid, but Sheppard died at the hospital.

After a jury trial, defendant was found guilty, on count one, of the lesser-included offense of second degree reckless manslaughter, contrary to N.J.S.A. 2C:11-4b(1). Defendant was found not guilty on all other counts of the indictment. A motion for acquittal notwithstanding the verdict and for a new trial was denied on May 17, 2005. On July 19, 2005, the trial court granted defendant's motion for a sentence in a range one degree lower than a second degree crime and imposed a four-year term of imprisonment, subject to the eighty-five percent No Early Release Act (NERA) period of parole ineligibility.

On appeal, defendant contends:

POINT I: THE TRIAL COURT'S RULING PRECLUDING THE DEFENDANT FROM ADMITTING THE HEARSAY STATEMENTS OF JEFFREY SHEPPARD INTO EVIDENCE CONSTITUTED REVERSIBLE ERROR.

(A) THE HEARSAY STATEMENTS OF JEFFREY SHEPPARD WERE ADMISSIBLE AS DECLARATIONS OF PRESENT SENSE IMPRESSION UNDER N.J.R.E. 803(C)(1), AS AN EXCITED UTTERANCE UNDER N.J.R.E. 803(C)(2), AND AS A DECLARATION AGAINST INTEREST UNDER N.J.R.E. 803(C)(25).

(B) THE TRIAL COURT'S RULING VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

POINT II: DR. SHAIKH'S TESTIMONY THAT HE DETERMINED THE "MANNER OF DEATH" TO BE HOMICIDE WAS PLAIN ERROR (NOT RAISED BELOW).

POINT III: THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO REINSTRUCT THE JURY ON THE FACTORS USED TO ASSESS THE CREDIBILITY OF A DEFENDANT'S STATEMENTS WHEN IT REPLAYED THE DEFENDANT'S STATEMENTS IN RESPONSE TO THE JURY'S QUESTION (NOT RAISED BELOW).

POINT IV: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE JURY'S VERDICT AND FOR A NEW TRIAL.

(A) THE VERDICT ON COUNT ONE FINDING THE DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER WAS AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED BELOW.

(B) THE VERDICT ON COUNT ONE FINDING THE DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER WAS IRRATIONALLY INCONSISTENT.

Having considered defendant's arguments in light of the facts and applicable law, we affirm the judgment of conviction and the denial of the motion for relief from the jury verdict. On the State's cross-appeal from the sentence within the range of a third degree crime, we also affirm.

A hearsay statement is generally inadmissible, unless one of the exceptions to the hearsay exclusionary rule provides for its admission. N.J.R.E. 802; State v. Long, 173 N.J. 138, 153 (2002). Defendant argues that the trial court erred by precluding the hearsay statements made by the decedent to two friends, Denis and Clark, specifically those made after a phone call between the decedent and defendant. The court rejected defendant's contention that the statements were admissible as declarations of present sense impression under N.J.R.E. 803(c)(1), as an excited utterance under N.J.R.E. 803(c)(2), and as a declaration against interest under N.J.R.E. 803(c)(25).

A trial court is afforded considerable latitude in deciding to admit or exclude evidence, and its decision will be reversed only if it constitutes an abuse of that discretion. State v. Feaster, 156 N.J. 1, 82 (1988). Substantial deference is generally given to a trial court's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998). Where a trial court exercises its discretion, an appellate court will not interfere unless the trial judge has "pursue[d] a manifestly unjust course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996).

There is no evidence of manifest injustice or abuse of discretion here. Although they were not permitted to testify to the decedent's statements of anger following the phone call, the two witnesses presented an adequate amount of information on what occurred the day of the stabbing. There was sufficient information from both Clark and Denis for the jury reasonably to infer that there was animosity between Sheppard and defendant. Therefore, there was no undue prejudice as a result of the trial court's evidentiary ruling and it will not be disturbed.

Defendant also contends that the excluded hearsay testimony bore upon the material issue of his intent and the defense of self defense and that such exclusion violated his Sixth Amendment right to confront the witnesses against him. In Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), the United States Supreme Court observed that "[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination." Since defendant is complaining about the court's exclusion - rather than the admission - of hearsay evidence, we fail to see how the Sixth Amendment right of confrontation is implicated.

Defendant argues that the testimony of the medical examiner, Dr. Junaid Shaikh, that he determined the "manner of death" to be homicide constituted plain error. Dr. Shaikh was qualified by the trial court as an expert in the field of forensic pathology and testified concerning the decedent's autopsy, concluding with a reasonable degree of medical certainty that the death was the result of a homicide.

Expert testimony may be admitted concerning the manner in which the victim died. State v. Moore, 122 N.J. 420, 457-60 (1991); State v. Compton, 304 N.J. Super. 477, 483-84 (App. Div.), certif. denied, 153 N.J. 51 (1998). A medical examiner is permitted to testify that the manner of the victim's death was a homicide and not accidental, in that the:

testimony was neither the expression of a forbidden lay opinion unnecessary to the determination of a fact in issue within the ken of an average juror, nor a prohibited direct opinion that defendant was guilty of any form of homicide. Rather, it was a legitimate expert opinion that the instrumentality and manner of [victim's] death were, in the words of defense counsel, "a human agency, [and] . . . another human being."

[State v. Baluch, 341 N.J. Super. 141, 185 (2001).]

If the medical examiner had testified that defendant was guilty of a crime, his testimony would have been improper. State v. Odom, 116 N.J. 65, 77 (1989). However, Dr. Shaikh did not opine as to defendant's guilt or innocence. His education, training and experience provided a sound foundation for his opinion as to the manner of death, which was properly admitted into evidence.

During the plenary jury charge, the trial judge instructed the jury, pursuant to State v. Kociolek, 23 N.J. 400 (1957), that they should receive, weigh, and consider the alleged oral statements made by the defendant with caution. Defendant contends that the trial court erred by failing to re-instruct the jury on those factors used to assess the credibility when it replayed defendant's statements in response to the jury question.

Trial courts have broad discretion in determining how to respond to jury questions. State v. Wolf, 44 N.J. 176, 185-86 (1965). To reverse a conviction based on the trial court's response to a jury question, a defendant must establish that the response constituted a clear abuse of discretion which deprived him of a fair trial. State v. Lamb, 134 N.J. Super. 575, 582 (App. Div.), aff'd, 71 N.J. 545 (1975). Generally, "the reading of all or part of the testimony of one or more of the witnesses at a trial . . . at the specific request of the jury during their deliberations is discretionary with the trial court." State v. Wilson, 165 N.J. 657, 660 (2000) (quoting Wolf, supra, 44 N.J. at 185). See also Lamb, supra, 134 N.J. Super. at 581-82. Here, the jury did not ask the court for clarification of a legal issue, but only to review testimony.

There was no abuse of discretion in the trial court's decision not to re-instruct the jury as to its assessment of witness credibility when it responded to the jury's question. The jury did not have a question about the law, but only wanted to have defendant's statements, made when the police arrived at the crime scene, to be read back to them. The trial judge appropriately instructed the jury about witness credibility during his plenary charge, and was not required to do so again.

Defendant argues that the trial court erred in denying his motion for a judgment of acquittal notwithstanding the jury's verdict and for a new trial. A defendant is entitled to a judgment of acquittal if, at the close of the State's case, the State fails to produce evidence sufficient to support a conviction. R. 3:18-1. An appellate court may grant a new trial only if it clearly finds a miscarriage of justice. State v. Afanador, 134 N.J. 162, 178 (1993).

A conviction for reckless manslaughter requires that the defendant acted with a conscious disregard for a known risk. State v. Jenkins, 178 N.J. 347, 363 (2004). In this case, the State presented sufficient evidence at trial to allow a reasonable jury to find defendant guilty beyond a reasonable doubt of reckless manslaughter. The State presented multiple eyewitnesses to the crime, who presented a credible account of what had occurred. Taking all evidence in the light most favorable to the State, a reasonable jury could have found defendant to be guilty. There is sufficient evidence on the record to support the jury's verdict and, therefore, there is no reason to grant a motion for acquittal or for a new trial.

The State is cross-appealing defendant's sentence, arguing that the trial court improperly weighed the aggravating and mitigating factors when imposing defendant's sentence. The trial judge sentenced defendant to one degree lower than a second degree crime, after finding one aggravating factor and seven mitigating factors under N.J.S.A. 2C:44-1.

Where the "interest of justice" demands, a sentencing judge may sentence a defendant to a term for a crime one degree below that which the defendant was convicted. N.J.S.A. 2C:44-1f(2). To sentence a defendant to a lower range, "the court must be clearly convinced that the mitigating factors substantially outweigh the aggravating factors and the interest of justice must demand the lower sentence range." State v. Lebra, 357 N.J. Super. 500, 514 (App. Div. 2003) (emphasis in original). See also State v. Balfour, 135 N.J. 30, 36 (1994).

A trial court is obligated to explain how it reached its conclusion that mitigating factors outweigh aggravating factors. Ibid. In this case, the trial judge stated he was "clearly convinced that the mitigating factors outweighed the only aggravating factor[.]" He reviewed the evidence before him and laid out his reasoning for his findings on the aggravating and mitigating factors, with credible and substantial support for each factor, both at the sentencing hearing and in a letter to the attorneys soon thereafter. The trial judge acted within his discretion, appropriately explained how he reached his conclusion on sentencing, and his decision is upheld.

Affirmed.

 

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A-6177-04T4

March 7, 2007