STATE OF NEW JERSEY v. MICHAEL MCCALL

This case can also be found at 199 N.J. 541, 973 A.2d 944.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1572-06T4A-1572-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL MCCALL a/k/a MICHAEL

COVINGTON,

Defendant-Appellant.

_______________________________

 

Submitted September 8, 2008 - Decided

Before Judges Carchman, R. B. Coleman and

Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. I-03-06-2173.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Paul Salvatoriello, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Michael McCall, appeals from his conviction in the Law Division following a jury trial in November 2005, of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); second-degree reckless manslaughter, N.J.S.A. 2C:11-3a(3), as a lesser-included offense of first-degree murder (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six). Merging counts one and two, the court sentenced defendant on count three to a forty-five year term of imprisonment with a period of parole ineligibility for eighty-five percent of that term and to concurrent sentences for lesser terms on the remaining convictions. We affirm.

On December 6, 2002, Carlos Velez was shot and killed while working at his store, the Elwood Mini Market located at 96 Elwood Avenue in Newark. Earlier that day, defendant McCall and co-defendants, Andreas Motley, Robert Luma, and Rashawn Stevens, conspired to commit a robbery of the mini-mart and proceeded to arm themselves with a .380 handgun and a 9mm handgun, both firearms supplied by defendant. At the time of the robbery, defendant was 42 years old. The other three participants were all under 18 years of age.

The following account of the robbery is taken from co-defendant Motley's trial testimony, given pursuant to a plea agreement whereby Motley admitted that he robbed and shot Mr. Velez. Once they arrived at the store, Luma and Stevens waited at the cab while defendant and Motley entered the store. Defendant was armed with the 9mm handgun and Motley with the .380. Motley approached the counter while defendant positioned himself at the front door. The men drew their weapons and demanded money. When Mr. Velez began to side-step, defendant told Motley, "Hit him," whereupon Motley shot Velez dead. Attempts to open the cash register were unsuccessful, and defendant was only able to take the register's change dispenser. The four men returned to defendant's apartment by cab and divided the proceeds from the dispenser, which totaled less than ten dollars. Also present at the apartment was Barbara Manning, defendant's girlfriend and mother of his two children. The four men and Manning spent the remainder of the day in defendant's apartment smoking marijuana.

On December 10, 2002, Newark Police Detectives were questioning Luma in connection with another robbery and homicide which had occurred near a sports store. Results of ballistic testing revealed that a shell casing recovered from the sports store robbery and one from the mini-mart robbery were fired from the same .380 handgun. In giving his statement about the sports store robbery, Luma also implicated himself in the mini-mart robbery, and based on Luma's statements the detectives decided to question defendant, who was in custody on unrelated charges. Defendant was advised of his Miranda rights, which he waived, and he subsequently executed a written statement admitting the events surrounding Mr. Velez's death.

On appeal, defendant raises the following arguments:

POINT I - DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE STATE ELICITED TESTIMONY THAT A NON-TESTIFYING CO-DEFENDANT HAD IMPLICATED DEFENDANT IN THE ROBBERY AND MURDER. (Not Raised Below.)

POINT II - THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY ALLOWING THE STATE TO INTRODUCE IRRELEVANT, HIGHLY PREJUDICIAL EVIDENCE THAT DEFENDANT IMPREGNATED AN UNDERAGE GIRL, BEAT HIS GIRLFRIEND, SMOKED MARIJUANA, PARTICIPATED IN OTHER UNRELATED ROBBERIES, LED A "GANG" OF TEENAGERS, AND WAS INCARCERATED ON UNRELATED CHARGES.

POINT III - THE ABSENCE OF A LIMITING INSTRUCTION THAT THE CO-DEFENDANT'S GUILTY PLEA CAN ONLY BE USED TO ASSESS THE CO-DEFENDANT'S CREDIBILITY AND NOT AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)

POINT IV - THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A FORTY-FIVE YEAR TERM BECAUSE A PROPER ANALYSIS OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We shall address each of defendant's arguments in turn.

I.

For the first time on appeal, defendant contends that his right to confront his accusers under both the United States and New Jersey Constitutions was violated when the State elicited hearsay evidence that Luma, a non-testifying co-defendant, had implicated defendant in the mini-mart robbery. Specifically, he asserts that under State v. Young, 46 N.J. 152 (1965), and Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the trial judge erred in allowing a detective to testify that Luma provided police with a statement that, in some way, linked defendant to the mini-mart robbery and ultimately led to defendant's interrogation and arrest. The trial court explained and we acknowledge that "[a] defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice . . . ." Bruton v. United States, supra, 391 U.S. at 132, 88 S. Ct. at 1625-26, 20 L. Ed. 2d at 483 (1968).

The State responds, however, that defendant's right to confrontation was not violated because the detective did not testify to, nor did the State seek to elicit, any of the substance of Luma's statement. The detective merely communicated that defendant became a person of interest after Luma provided his statement.

"The Confrontation Clause of the Sixth Amendment provides that "'[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" State v. Castagna, 187 N.J. 293, 308-09 (2006) (quoting U.S. Const., amend. VI)); accord Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177, 187 (2004). "'The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.'" Ibid. (quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666, 678 (1990)). "The primary interest advanced by the Confrontation Clause is the right of cross-examination." State v. Laboy, 270 N.J. Super. 296, 303 (App. Div. 1994) (citing Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 2662, 96 L. Ed. 2d 631, 641 (1987)).

In Crawford, the United State Supreme Court outlined its approach to Confrontation Clause issues. There, the Court instructed that if the statement is testimonial it may not be admitted unless the declarant is legally unavailable and defendant had a prior opportunity for cross-examination of the declarant. Crawford, supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. However, if the statement is non-testimonial it is exempted from Confrontation Clause scrutiny. Ibid.

Our jurisprudence has also been extremely protective of a defendant's right to confront his accusers. For example, in State v. Young, supra, 46 N.J. 152, our Supreme Court held that a hearsay statement of one co-defendant implicating another co-defendant is inadmissible. Thus, "where a defendant moves to eliminate all references to himself from a codefendant's statement which the prosecution proposes to place in evidence, the trial court must grant such a motion." Id. at 157. Consistently, in State v. Walden, 370 N.J. Super. 549 (App. Div.), certif. denied, 182 N.J. 148 (2004), we reversed and remanded a defendant's conviction where an alleged co-perpetrator, who had pled guilty, refused to testify after the prosecutor had commented in his opening statement that the non-testifying co-perpetrator would implicate defendant. We held that the prosecutor's comments, coupled with the prosecutor's vouching for the prosecution's key witness who did testify, deprived defendant of a fair trial. Id. at 552.

Here, co-defendant Luma, while in custody regarding a sports store robbery, voluntarily gave a statement that led Elwood Detective Michael Chirico to speak with defendant. The detective did not testify that Luma implicated defendant in the mini-mart robbery. His testimony did not reveal the substantive content of Luma's statement; nor did the State's line of questioning attempt to elicit such content. Rather, the detective merely testified that he took a statement from Luma, and then afterward, he spoke to defendant. In State v. Bankston, 63 N.J. 263, 268-69 (1973), our Supreme Court held:

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.

[Id. at 268-69 (citations omitted).]

We also note defendant's failure to object to the detective's testimony, as well as defense counsel's repeated references to the detective's statement during his closing statement. Even if there had been error in allowing the detective to make any mention of Luma's statement which led him to speak to defendant, it was not plain error, clearly capable of producing an unjust result. Rule 2:10-2; see State v. Cotto, 182 N.J. 316, 336-37 (2005) (harmless error for trial judge to admit a hearsay statement given to police, that led them to capture defendant, in light of the other "strong identification evidence" the State proffered to prove defendant committed the robbery); see also State v. Roach, 146 N.J. 208, 224-26 cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (in light of defendant's testimony that he "admitted to being at the crime scene[,] admitted to planning the robbery, being a lookout, knowing about the guns, and knowing the details of the shooting[,]" it was harmless error to allow a detective to testify that only after meeting with various co-defendants did he then speak with defendant and inform defendant that he was a suspect).

As discussed hereafter, defendant himself gave a statement admitting his involvement in the incident. In addition, Motley, a co-perpetrator, testified at trial concerning defendant's involvement. Under such circumstances, the detective's reference to Luma's statement was harmless.

II.

Defendant next contends that the trial judge admitted various pieces of evidence in violation of N.J.R.E. 404(b), and that the combined effect was to deprive him of his right to a fair trial. Specifically, defendant posits that the following evidence was erroneously admitted: (a) Manning became pregnant with one of defendant's children when she was underage; (b) defendant hit Manning on one occasion; (c) defendant, Manning, and his co-defendants smoked marijuana after the homicide; (d) Motley testified that he and defendant previously committed other robberies together; (e) the State used the word "gang" in its summations; and finally, (f) the detective disclosed that defendant was already in custody on unrelated charges when the detective asked to speak with him.

The State counters that none of the specified evidence was offered to show that defendant was predisposed to commit crimes. It further adds that "fleeting, and often unexpected, references in the context of a long trial with overwhelming evidence of defendant's guilt" are harmless. In addition, the trial judge properly instructed the jury concerning the limited extent to which other crimes evidence could be considered, thereby purging any unnecessary taint. The controlling rule, N.J.R.E. 404(b), states:

Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Admissibility of 404(b) evidence is generally governed by a four-part test:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

"Despite its prejudicial nature in some contexts, Rule 404(b) does not exclude evidence of other crimes, wrongs, or acts under all circumstances." State v. Nance, 148 N.J. 376, 386 (1997). "The rule recognizes that there are times when that evidence is probative of a material disputed fact in the case." Ibid.

It is the trial judge's function to act as a gatekeeper to the admission of other-crime evidence. State v. Hernandez, 170 N.J. 106, 127 (2001). Indeed, we review the record under an abuse of discretion standard because it is recognized that the trial judge is in the best position to engage in the balancing required of evidentiary findings, and for this reason, such findings are entitled to deference. State v. Covell, 157 N.J. 554, 564 (1999). The trial court properly may allow evidence of other conduct to show the defendant's motive, intent, or absence of an accident. The court must, however, "instruct the jury on the limited use of the evidence." Cofield, supra, 127 N.J. at 340-41.

Here, the evidence of defendant's guilt was substantial. Defendant had knowingly, voluntarily, and intelligently waived his Miranda rights and confessed to his participation in the events that led to the death of Mr. Velez. In addition, Motley, one of his co-defendants, testified and corroborated the facts of the crime. Testimony from the investigating officers regarding ballistic and forensic testing, as well as that from witnesses such as Manning also strongly supported the jury's guilty verdict. In context, we do not find that the court's evidentiary rulings, either singly or cumulatively, constituted an abuse of the court's discretion.

We are satisfied that the testimony regarding defendant's relationship with Manning, his alleged prior abuse of her, and the fact that she had one of his children when she was underage, were properly admitted to provide "a basis for the jury to infer" that Manning must be biased. State v. Timmendequas, 161 N.J. 515, 594 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Bias and interest are always relevant and always non-collateral. N.J.R.E 607; State v. Gorrell, 297 N.J. Super. 142, 149 (App. Div. 1996) (citation omitted).

Manning is the mother of two of defendant's children and had a long-term relationship with him. While that relationship might suggest a bias in favor of defendant, the fact that she was once abused might give her reason to give untruthful testimony to hurt defendant. To allow balance and to safeguard against any claim of unfair prejudice, the court limited the State to eliciting testimony that Manning was twenty years old in 2002 when she was living with defendant and that she was the mother of his children. The jury was left to do the math and no undue emphasis was placed on the fact that Manning had children with defendant when she was underage. We are convinced that no undue prejudice occurred when such facts were allowed to impeach Manning. The jury was merely permitted to assess more fully Manning's credibility.

The evidence that defendant, Manning, and the co-defendants were smoking marijuana following the murder was relevant to the testimony proffered "insofar as it may relate to a witness' ability to perceive and recall." State v. Ciuffini, 164 N.J. Super. 145, 154 (App. Div. 1978) (citing State v. Franklin, 52 N.J. 386, 398-400 (1968)). This evidence may also be used to show motive or intent for committing the crime by explaining the nature and the impetus behind it.

The State's use of the word "gang" during closing argument was wholly innocuous. The trial judge, in addressing defense counsel's motion for a mistrial, correctly noted that a closing statement is not evidence but rather an attorney's assessment of the evidence and his arguments thereon. State v. Carswell, 303 N.J. Super. 462 (App. Div. 1997). Thus, N.J.R.E. 404(b) is not offended because that rule only applies, by its plain language, to evidence of "other crimes, wrongs, or acts." Considering the overall context in which the State used the term "gang" it could not reasonably be understood to suggest that defendant was running an organized criminal syndicate. Instead, the term plainly referred to the group of individuals acting in concert to commit the crime. It is to be remembered that "[w]e afford prosecutors considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented." State v. Harris, 141 N.J. 525, 559 (1995). We perceive no undue prejudice in the use of the word "gang" to refer to defendant and his cohorts. We are likewise satisfied the trial court did not improperly exercise its discretion in not providing a limiting instruction that might have implanted or exaggerated the connotation that the word "gang" might mean an organized criminal syndicate.

Motley stated that he and defendant committed other robberies together, however, there is no indication that the State intentionally sought to elicit such testimony. Rather, Motley was unresponsive to the State's questions. Immediately after defendant objected, the trial judge twice instructed the jury that it should only focus on the incident at issue and not on any other crimes. The court refused, however, to grant a mistrial and that refusal was within its discretion:

The decision of whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.

[State v. Winter, 96 N.J. 640, 646-47 (1984).]

As the Court in Winter further noted, "[t]he adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Id. at 647. The curative instruction given in this case properly addressed the unsolicited comment by Motley and the disclosure by the detective that defendant was in custody on unrelated matters. That disclosure involved no elaboration as to why defendant was in custody at that time.

As already stated, in a careful review of the entire record and viewing the alleged errors, separately and in the aggregate, we find them non-existent or harmless. Certainly we discern no error was so unduly prejudicial to defendant as to warrant a reversal. See State v. La Porte, 62 N.J. 312, 320 (1973) (citing State v. Orecchio, 16 N.J. 125, 129 (1954)).

III.

Defendant next contends the trial judge plainly erred by not providing a limiting instruction to explain that evidence of Motley's guilty plea was allowed only to assess his credibility as a witness, and not as substantive evidence of defendant's guilt. The State reminds us that defense counsel failed to request a tailored charge and that defendant had the opportunity to thoroughly cross-examine Motley at trial. The trial judge gave the standard jury charge on credibility and instructed the jury that testimony of an alleged accomplice should be carefully scrutinized. In light of defendant's own admissions as to his guilt, along with other substantial evidence establishing defendant's guilt, we find no plain error occurred in the jury charge as given.

Indeed, this very issue was recently address by the Supreme Court in State v. Comer and State v. Adams, 194 N.J. 186, 208 (2008), consolidated for the purposes of the Court's opinion. There, the Court concluded:

[T]he trial court should instruct the jury that it must carefully scrutinize the testimony of a co-defendant in light of the witness's special interest and that a co-defendant's guilty plea may be used only to assess credibility and may not be used as substantive evidence of a defendant's guilt.

In applying that ruling to the circumstances of the case, the Court nevertheless observed:

At trial, defense counsel thoroughly cross-examined [the testifying co-defendant] to challenge his credibility and [his] lack of credibility was a major theme in closing arguments for the defense, which asserted that [the testifying co-defendant] was a liar. The detailed testimony of [the testifying co-defendant] independently established his guilt of the crime and, therefore, his guilty plea added little weight to that testimony. Further, the trial court gave the standard charge on credibility. Under those circumstances, we are satisfied that "the error did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of trial."

[Id. at 208-09.]

Those same observations inform our review of the case at bar.

IV.

Defendant argues the trial court abused its discretion in sentencing defendant to a forty-five-year prison term, with an eighty-five percent parole disqualifier. More specifically, he contends the trial judge incorrectly found applicable aggravating factors N.J.S.A. 2C:44-1a (1), (2), (6), (9), and (12). Defendant alleges the trial judge placed too much weight on the usual aggravating factors (6), prior record, and (9), the need to deter. Defendant maintains the trial court did not articulate the reasons for its finding, but rather relied on a general need to deter, thus resulting in double-counting. Defendant also contends the judge erred in finding aggravating factors (1) and (2) because the victim's advanced age was already taken into account in finding aggravating factor (12). Similarly, defendant asserts there were no facts in the record that made this killing more heinous than others.

The trial judge noted on the record defendant's prior twenty-one arrests before finding that aggravating factors (1), (2), (6), (9) and (12) substantially outweighed the non-existent mitigating factors. In making his findings, he credited defendant with setting events in motion that "recklessly and needlessly" led to Mr. Velez's death. Also, the judge gave specific reasons for deterrence, noting, in particular, defendant's current influence over impressionable youths and the need to stop him from influencing other youths. We also do not agree with defendant's assertion that the trial judge double-counted factors.

Affirmed.

The State, in exchange for Motley's testimony, dropped the murder charges against him and allowed Motley to plead guilty to aggravated manslaughter and first-degree robbery, for which he received an aggregate prison term of twenty-five years.

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

(continued)

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A-1572-06T4

December 23, 2008