state of new jersey v. christopher hall

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2652-05T42652-05T4

state of new jersey,

Plaintiff-Respondent,

v.

christopher hall,

Defendant-Appellant.

 

Submitted April 10, 2008 - Decided

Before Judges Parrillo, S.L. Reisner and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-07-0677.

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

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury along with co-defendants Kenton Rodney and Deon Ellis, defendant Christopher Hall was found guilty of first-degree robbery, N.J.S.A. 2C:15-1 and 2C:2-6 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four). Defendant's conviction on count three was merged with that for armed robbery for which he was sentenced to an extended term of fifty-five years, N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:43-7(c), subject to an 85% parole bar. On count four, defendant was sentenced to a consecutive term of five years subject to a two-and-one-half year period of parole ineligibility, for an aggregate sentence of sixty years, with a 49.25 year period of parole ineligibility. Defendant appeals. We remand for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Thomas, 188 N.J. 137 (2006), vacate the consecutive nature of the sentence on count four, and affirm the judgment of conviction in all other respects.

According to the State's proofs at trial, Michael Messina, an admitted drug dealer previously convicted of robbery and drug possession, while driving in Paterson on March 15, 2003 at around 3:00 a.m., observed two women, Dawn Smith and Ebony Morris, standing on the sidewalk near Auburn Street. He thought Dawn was a woman he knew as "Stay High," who was actually Dawn's sister. When he got closer, however, he realized he was mistaken but nevertheless stopped to talk to the women, hoping to have sexual relations. Ebony declined because she had a boyfriend, but Dawn indicated an interest even though she had a boyfriend, who happened to be defendant, the father of her child. Messina offered them a ride to the store where they were headed, and then to their home, and they accepted.

On the way home, Messina received a call from a customer who wanted to purchase marijuana. Messina took a quick detour to meet him, removed some drugs from his console and sold his customer the marijuana from his car, witnessed by both Ebony and Dawn. After completing the transaction, Messina drove the women home but first obtained Dawn's phone number and made plans to get together the next day.

As Dawn entered her apartment with Ebony, she met Rodney, Ellis, defendant, her sister "Stay High", and another female, who were all inside. According to Dawn, when Rodney overheard her discussing Messina's money and large drug stash, he devised a plan whereby Dawn would go to Messina's house and keep him occupied while taking a shower, at which time Ebony would open the door for Rodney and Ellis. As Rodney explained his plan, defendant resisted and even left the apartment, while Ellis sat quietly and nodded his head.

The next morning, Messina returned Dawn's numerous calls and arranged to meet her later at her house. As Messina arrived around 1:30 p.m. and waited for Dawn to come out, he noticed three black men staring at him as they walked past his vehicle. After they entered Dawn's building, Dawn and Ebony appeared. Messina was surprised to see Ebony, but Dawn assured him Ebony would just sit in the living room watching television and smoking marijuana.

When they arrived at Messina's home, which was about two miles from where Dawn lived, he brought the drugs from his car inside, locked the door behind him and immediately went upstairs to put the drugs in a dresser drawer in his bedroom. When he came back downstairs, Dawn asked to use the telephone and, unbeknownst to Messina, called Ellis to give him Messina's address. In the meantime, Messina gave Ebony a bag of marijuana. When Dawn finished her telephone conversation, she and Messina took a shower together in the first floor bathroom. While they were in the shower, Ebony knocked on the door and told Messina that his cell phone was ringing. Messina answered the call, which was from a preferred customer wishing to purchase marijuana. Messina agreed. He and Dawn exited the shower, got dressed, and all three left together.

Once outside, Messina noticed the same three men walking down his street whom he had seen earlier in front of Dawn's building. When he asked Dawn if she knew them, she responded no. Thinking it merely coincidental, Messina proceeded with the two women to the customer's house where he exited his car with five bags of marijuana, and completed the transaction. The trio returned to his house.

Upon arrival, Messina followed the same routine of bringing all of his drugs into his house, locking the door behind him, and hiding the drugs in his bedroom. Messina and Dawn again entered the shower and were again interrupted by Ebony who this time told them she was going outside to smoke a cigarette. Almost immediately thereafter, Ellis "ripped the shower curtain down" holding a firearm. Messina recognized the man to be one of the three men he first saw in front of Dawn's building, and then again in front of his house. Dawn immediately got out of the shower, grabbed her clothes, and left the bathroom without any resistance from Ellis. Ellis then demanded Messina's money and drugs, but Messina said that he did not have either. Ellis persisted, however, and ordered Messina out of the shower.

Messina was forced to lie down naked on his living room floor where he noticed a second man, defendant, wearing what he believed to be a bandana over his face. Based on the man's build and facial features not covered by the mask, Messina believed defendant was also one of the men he had seen previously. Defendant restrained Messina with a cord from his vacuum cleaner and Messina's belt, and assured him that once Messina gave them the drugs and money, they would leave.

In an attempt to isolate defendant, who appeared to be unarmed, Messina told the men that the drugs were outside in the car. Once alone, it was Messina's plan to restrain defendant. However, it was defendant who checked the vehicle, leaving Ellis, who was armed, behind. At this point, Dawn entered the kitchen, and signaled to Ellis that the drugs were upstairs. Ellis then returned to Messina, placed the gun against his head, and angrily told him to stop playing around because he knew the drugs were upstairs.

Messina finally told Ellis exactly where the drugs were located because, at that point, "it was getting serious[,]" and he was also worried that his mother would arrive home. Together, defendant and Dawn went to Messina's bedroom, while Ellis remained with Messina holding the gun to his head. Shortly thereafter, defendant descended the stairs holding the drugs.

At this point, the doorbell rang and the door began to open. Ellis turned and fired the gun without warning, shooting Ebony as she was reentering the house. Ellis and defendant ran out the front door, while Dawn stayed behind. Messina untied himself, wrapped a coat around his waist, ran outside, and saw Ellis sprinting away, with Rodney, the third man he had seen earlier in the day, lightly jogging down the block.

When Messina went back into the house, he found Ebony lying on the ground motionless with the gun next to her. Dawn was yelling frantically for Messina to help Ebony. Messina went upstairs to get dressed. When he returned, the gun had disappeared. Dawn had thrown it out the bathroom window for fear Ellis would return and kill her to cover up his crime. Messina called 9-1-1.

Ebony died of a bullet wound to the face. When police arrived, they questioned Dawn and Messina separately. At first, Dawn portrayed herself as a victim, explaining that she was in the shower with Messina when two black males entered the home, forced them out of the shower, robbed them, and shot Ebony in the process. Messina then also informed the officers that the firearm had disappeared from the living room floor when he went upstairs to get dressed. Later, Detective Rafael Fermin, while walking around the perimeter of the house, discovered the firearm lying right outside the bathroom.

At the police station, Dawn admitted her role in the robbery. She and Messina identified defendant and the two co-defendants through photographs, and both gave formal statements.

During the course of the ongoing investigation, the police received information that on May 2, defendant would be traveling by bus to the Port Authority in New York under the name Tesfiete Planno. After police confirmed this information with Greyhound, they proceeded to the bus terminal where they observed defendant exit the bus, looking basically the same, with the exception of highlighted hair. At first, defendant denied that he was Christopher Hall. However, when the police showed defendant a wanted poster with his picture, he replied "you got me." Defendant was read his Miranda rights, and placed under arrest.

During the subsequent interview, defendant denied any involvement in the robbery explaining that he, Dawn and Messina were just hanging out at Messina's house when Ebony decided to go to the liquor store. When she returned, defendant heard a shot fired and saw Ebony lying on the floor. Scared, defendant ran to his mother's house.

Evidently crediting the State's version, the jury found defendant guilty of armed robbery and the related weapons offenses.

On appeal, defendant raises the following issues:

I. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING ACCOMPLICE LIABILITY AND THE NEED TO DETERMINE THE DEFENDANT'S CRIMINAL CULPABILITY WITH RESPECT TO DIFFERENT DEGREES OF ROBBERY. (NOT RAISED BELOW)

II. THE TRIAL COURT ERRED BY FAILING TO SUBSTITUTE AN ALTERNATIVE JUROR DURING JURY DELIBERATIONS, INSTEAD PERMITTING A JUROR TO CONTINUE DELIBERATIONS DESPITE INDICATIONS HE WAS UNABLE TO EFFECTIVELY CONTINUE TO DO SO DUE TO HIS MEDICAL CONDITION. (NOT RAISED BELOW)

III. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF INADMISSIBLE HEARSAY WHICH SIGNIFICANTLY PREJUDICED THE DEFENSE BY CHARACTERIZING THE DEFENDANT AS HAVING FORMULATED THE PLAN TO ROB THE VICTIM. (NOT RAISED BELOW)

IV. THE TRIAL COURT ABUSED ITS DISCRETION BY REQUIRING THAT THE SENTENCE IMPOSED ON COUNT IV BE CONSECUTIVE RATHER THAN CONCURRENT TO THE SENTENCE IMPOSED ON COUNT II.

V. THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. THOMAS AND STATE V. NATALE.

We address these issues in the order raised.

(i)

Even though he did not object below, defendant now faults the court's jury charge on accomplice liability because it failed to adequately instruct that an accomplice may be found guilty of a lesser crime than the principal. We disagree. The court's charge was not error, much less plain error. R. 1:7-2; State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

The State's case against defendant was founded on a theory of accomplice liability. "When a prosecution is based on the theory that a defendant acted as an accomplice, the trial court is required to provide the jury with understandable instructions regarding accomplice liability." State v. Savage, 172 N.J. 374, 388 (2002). The Savage Court explained,

By definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice. Therefore, a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.

[Ibid. (internal citations and quotes and citations omitted).]

By the same token, "when lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Ibid. (alteration in original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). In other words,

[i]f both parties enter into the commission of a crime with the same intent and purpose each is guilty to the same degree; but each may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind.

[State v. Fair, 45 N.J. 77, 95 (1965).]

See also State v. Oliver, 316 N.J. Super. 592, 596-97 (App. Div. 1998) ("The judge must also instruct the jury that it could find the accomplice guilty of a lesser offense than the principal."), aff'd, 162 N.J. 580 (2000).

Defendant does not challenge the court's definition of accomplice liability. Instead, as noted, he argues the court did not adequately instruct that an accomplice may be guilty of a lesser offense than that of the principal. Such a claim, however, may not be viewed in isolation, but must be considered against the whole of the jury charge to determine its overall effect. State v. Wilbely, 63 N.J. 420, 422 (1973).

Here, the judge expressly informed that the culpability of an accomplice depends on his individual state of mind:

As I explained earlier . . . our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent upon his own state of mind and not anyone else's.

The judge reiterated this concept of the differing degrees of culpability based on differing mental states when he referenced a hypothetical he gave earlier in his instructions concerning a handyman working in someone's home who gives a third party directions on how to break in undetected:

Earlier I illustrated the concept of legal accountability for the conduct of another by reason of the hypotheticals I gave you about the handyman and the various ways that culpability can be different between different people connected in the same venture.

In considering whether a defendant is guilty or not guilty as an accomplice to the crime of robbery or robbery while armed or theft from the person, in the case of Kenton Rodney, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependant upon his own state of mind and no one else's.

The hypothetical to which he was referring is set out in full:

And the reason I'm telling you about this is because I want to give you a hypothetical situation to explain the proposition that in the law people, even though they're involved in the same venture, can have different degrees of culpability or responsibility.

An here[']s what I mean by that, let's suppose the handyman said, look, in order

. . . for you to do this there is always this uncle in the house. You're going to need to take a gun just to keep him quiet or in case he shows up or comes from upstairs, downstairs. You better take a gun just in case. Now, his purpose is to promote or facilitate a burglary done while armed, so he would be guilty of that second degree of burglary. A higher degree of burglary because his purpose was to promote or facilitate that.

Let's suppose, on the other hand, he never had a thought about a gun, didn't say anything to his associate who's going to go in the house but that person decided, look, I think just for my own purposes I'm going to take a gun with me. Okay. Now the handyman, his purpose is to promote or facilitate a simple burglary. He would be guilty of that if it was proven by the evidence beyond a reasonable doubt; the man who went in the home would be guilty of a higher crime, a higher degree of burglary, because he did the burglary while being armed.

So, you can see in that hypothetical there are different degrees of responsibility even though the two people are involved in the same venture.

Let's suppose the handyman never had any thoughts of a burglary. He never had a purpose to promote or facilitate a burglary but he told his friend about the jewelry in the house and how this door, they don't lock the back door, but he did not have a purpose to promote or facilitate any crime. He wouldn't be guilty of anything even though his information is what was used by his associate who then went in and did the burglary in whatever form and stole property from in the house.

So, when you're dealing with accomplice liability you have to examine each individual person involved in the venture separately and their guilt is dependent on their state of mind and what their purpose was. So you have to deliberate the involvement and the state of mind and the purpose of each person involved separately, if you first find that they are involved together.

We are satisfied that the court's jury charge, considered in its entirety, clearly instructed that participants in a criminal venture can have different degrees of culpability based on their own individual state of mind. Thus, the instant matter differs from State v. Bielkiewicz, 267 N.J. Super. 520, 523, 531, 535 (App. Div. 1993), wherein we concluded that the court's charge on accomplice liability for murder, which did not indicate in any manner that an accomplice may be convicted of a lesser offense, was clearly capable of producing an unjust result. So too, in State v. Cook, 300 N.J. Super. 476 (App. Div. 1996), the jury instructions failed to properly inform the jury "in unequivocal terms that," it could decide that the liability of defendant was different than the principal because each had a different state of mind. Id. at 487-488. In reversing the defendant's conviction for purposeful or knowing murder, we underscored the importance, in imparting the basic notion of levels of culpability, of the need for a "detailed explanation of accomplice liability theory tied to the facts." Id. at 487.

In Savage, supra, the trial judge's charge on accomplice liability was, "in its expression of relevant legal principles, entirely correct." 172 N.J. at 393. However, the Court took exception to the fact that the charge was not tied to the specific facts of the case in any way:

[t]o be sure, the trial court failed to articulate factually how Terrell could have been guilty of purposeful or knowing murder, and Sherron guilty of one of the lesser offenses, for example, aggravated or simple assault, if he possessed a different state of mind. Indeed, the court's "canned" accomplice liability instruction was not tied to the facts at all and, in that respect, violated our often-expressed exhortation that, to serve its purpose, a charge, especially a complex one, should be tethered to the facts that the jury has heard.

[Id. at 393-94.]

Importantly, notwithstanding this conclusion, the Court intimated that as long as the charge fully and properly relates the correct legal principles, the failure to tie the instruction to the facts of the case would ordinarily not be reversible error:

However, because the trial court instructed the jury in accordance with relevant legal principles, under ordinary circumstances, we would presume that the jury understood and followed those instructions. See, e.g., State v. Burris, 145 N.J. 509 (1996) (citing State v. Manley, 54 N.J. 259, 270 (1969) (stating that, with regard to proper use of evidence, "the Court presumes that juries will understand and abide by the court's instruction")).

[Id. at 394.]

Here, of course, the judge properly instructed on all relevant principles of accomplice liability and, in addition, gave a lengthy hypothetical further explaining the concept of differing levels of culpability. Although the concrete example used did not detail the particular facts of this case, it was substantially similar, specifically dealing with the use of a gun in the commission of a crime. The hypothetical clearly illustrated how an accomplice may be found guilty of a lesser offense than the principal because he lacked the specific intent to use the weapon during the commission of the burglary. Under the circumstances, the court's instruction did not constitute error, much less plain error.

(ii)

Defendant next complains of the court's failure to remove a juror who complained of chest pains during deliberations, although counsel did not seek his removal below. R. 2:10-2. We find no abuse of discretion here.

Briefly, by way of background, after the jury was charged and began deliberating, juror #3 indicated concern over chest pains, but when the judge asked him whether he was able and wanted to continue, the juror answered affirmatively. The judge then instructed the juror to immediately alert the court if he felt ill during deliberations:

The Court: How do you feel right now?

Juror #3: Right now, I'm trying to decide if I'm getting a pain or I'm feeling this pressure, you know. It got me uneasy, you know. Gee, you know, I'm just sitting back trying to like just relax and do this because I'm like - I need to try to go through with this, you know. When he said go over there to the emergency room, I said I just couldn't.

The Court: We don't want anything to happen to you, Mr. Bronson.

. . . .

The jury has worked through this together because we have answered various notes, but there's no reason for you to risk your health.

What is it that you want me to do? Do you have something that you want - do you want me to let you go now and put the alternate in, or do you want to continue?

Juror #3: You see, that's a yes and no thing. Right now I'm like, you know, somehow I kind of feel - I feel like if I'm about to have a palpitation or something like that, like from way back before. I'm really on edge right now.

The Court: You are, okay.

Juror #3: It's like that. So I would rather sit here, but I just want to let you know just in case I feel that I need to go, you know. It's kind of like right there.

. . . .

The Court: Right now are you feeling any chest pains?

Juror #3: No.

The Court: Any tightness or dizziness?

Juror #3: It's hard to determine because, you know, I'm like really not relaxed. It seems like I just can't relax and I can't calm down. I'm just saying that I don't know if it's because I'm under stress or what; I don't know what it is.

The Court: Something is definitely bothering you?

Juror #3: Yeah.

The Court: I know you understand that there would be problems if we excused you.

Juror #3: Exactly.

The Court: But your health comes first. Are you saying - I'm not sure I have on the record what you feel that you want to do. Are you asking to be excused now, or are you saying I want you to know about this, and if I feel I have to go right away to the doctor, I'll let you know and I'll go?

Juror #3: That's exactly what I'm saying, what you just said.

. . . .

Mr. Aprile: We don't want anything to happen to one of the jurors. If you want to continue, that's great. If you don't, of course we'll talk it over with the judge.

Do you want to continue and see if you can do this? If you start to again not feel well, obviously we would let you go. Would you prefer to go now and not subject yourself to what seems to be stressing you out?

Juror #3: I want to go back in there and finish deliberating, if I can.

[(emphasis added).]

Having assured himself of the juror's ability and willingness to continue deliberating, and clearly stating the juror's health was of the utmost importance, the judge decided to allow juror #3 to remain on the jury:

The Court: [Talking to Juror #3] I'm going to let you stay only because I got the sense from you that you really want to try to do this. But I don't want you to let me jeopardize your - make any risks for you healthwise. I'm going to let you continue with this understanding between us. Number one, if you feel an concern that you are feeling palpitations or you are just feeling tingling, you let me know. Then it is my call and not your call, and then you will have to go to a doctor and be checked out.

[(emphasis added).]

The decision to substitute a juror is left to the discretion of the trial judge. See State v. Valenzuela, 136 N.J. 458, 470 (1994); State v. Banks, 395 N.J. Super. 205, 215 (App. Div.) ("A trial court has discretion to remove and replace a deliberating juror 'because of [the juror's] illness or other inability to continue.'"), certif. denied, 192 N.J. 598 (2007).

Specifically, the discharge and substitution of jurors is governed by Rule 1:8-2(d). See Valenzuela, supra, 136 N.J. at 467. "The rule permits a trial court to substitute an alternate juror for a regular juror after deliberations have begun because of death, illness, or 'other inability to continue.'" State v. Williams, 171 N.J. 151, 162 (2002). Thus, Rule 1:8-2(d) has both an "illness" prong and the "inability to continue" prong. The "illness" standard is "clear and narrow" on its face. State v. Hightower, 146 N.J. 239, 254 (1996). On the other hand, "the 'inability-to-continue' standard, at first glance, appears vague and rather broad[;]" ibid., however, our Court has narrowly interpreted this passage. To remove a juror under that standard,

"the record [must] adequately establish [] that the juror suffers from an inability to function that is personal and unrelated to the juror's interaction with the other jury members. If a court suspects that the problems with the juror are due to interactions with other jurors, the court should instruct the jury to resume deliberations."

[Williams, supra, 171 N.J. at 164 (alterations in original) (quoting Hightower, supra, 146 N.J. at 254)].

These two standards often overlap. Ibid.

Our Court has also cautioned that Rule 1:8-2(d) should be used sparingly and only as a last resort:

Substitution of an alternate juror during deliberation does not in and of itself offend a defendant's constitutional guarantee of a trial by jury. However, sparing use of the rule is counseled. Because juror substitution poses a clear potential for prejudicing the integrity of the jury's deliberative process, it should be invoked only as a last resort to avoid the deplorable waste of time, effort, money, and judicial resources inherent in a mistrial. At the heart of jury deliberations is a joint or collective exchange of views among individual jurors. It is therefore necessary to structure a process and create an environment that fosters and preserves that exchange until the jury reaches a final determination. The reconstitution of a jury by substitution of an alternate juror in the course of jury deliberations can destroy the mutuality of those deliberations.

[Id. at 162-63 (internal citations and quotes omitted).]

Here, defense counsel all agreed to permit Juror #3 to continue deliberating. "The defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955). Indeed, in State v. Baluch, 341 N.J. Super. 141, 194-95 (App. Div.), certif. denied, 170 N.J. 89 (2001), we concluded that, contrary to the defendant's contention on appeal, a trial judge's decision not to exclude a juror was not an abuse of discretion partly because defense counsel argued otherwise during trial.

Even if defendant here were not estopped from raising the issue, we find no error in the judge's procedural approach of investigating juror #3's illness claim or in his ultimate determination in light of the juror's unequivocal representations, that the juror was willing to continue deliberating in a fair and impartial manner and with an open mind.

(iii)

Defendant also contends that a portion of Messina's testimony about Dawn Smith's out-of-court statement to him indicating that defendant planned the robbery deprived him of a fair trial. We disagree.

During cross-examination, Messina was asked whether he had spoken with Dawn after Ebony was killed. Messina responded that two or three months later, he spoke to Dawn over the telephone, and she attempted to convince him that she did not try to rob him, that she was innocent. She told him that "it was her baby's father [defendant] that was behind it all." The defense voiced no objection. R. 2:10-2.

Actually, it was the judge who, after a short recess, asked defense counsel whether he wanted a limiting instruction indicating that Messina's testimony of what Dawn said about defendant cannot be considered as evidence that can be used against him. Defense counsel agreed. When trial resumed, the judge immediately gave the following limiting instruction:

You [jury] remember we've talked about evidence. There is another area of evidence that I want to talk with you about now and give you an instruction about.

Evidence can be allowed for a limited purpose. There are times when certain evidence is allowed and it has a limited purpose for which it can be used by the jury and it must not be used for any other purpose. And then the jury decides whether or not it does have some effect . . . for this limited way or not.

. . .

There was a part of the testimony of Mr. Messina, that was one of the last things that was testified to, and he was telling you about a telephone call which he says he had with Dawn smith. And part of what he said was that Dawn Smith said to him that her baby's father was behind it all.

Now that testimony, like any other testimony of Mr. Messina, can be used for the purpose of being considered as you find it effects his credibility one way or another. It can be used for that purpose. The way it must not be used is as evidence of the involvement of this baby's father, whoever that person would come to be identified as, if that were - if that were to come out in testimony. So it's not evidence that this person, the father of the baby, was involved or behind it. It can't be used that way at all, must not be used that way at all. However, like all of the evidence of Mr. Messina, it can be something you consider in assessing his credibility, believability, because as you know, that's what you do with regard to every single person who's a witness in the case.

The introduction of inadmissible hearsay evidence is not per se reversible error:

[i]n addressing the question of what standards should guide a trial court on whether to issue curative instructions or grant a mistrial, we are mindful of the dynamics that are necessarily a part of our adversary system. Not all the variables are capable of absolute control. The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence. Hence, it is axiomatic that "[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error * * *; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently." Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed. 2d 476, 484 (1968).

[State v. Winter, 96 N.J. 640, 646 (1984) (second and third alterations in original).]

A curative instruction can successfully ameliorate any resulting prejudice and thus avoid the need for a mistrial, a decision left to the sound discretion of the trial judge:

The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead 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.

. . . .

Likewise, when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. The 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. However, even in the context of an error of constitutional magnitude, this Court has stated that not any possibility can be enough for a rerun of the trial. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.

[Id. at 646-47 (internal citations and quotes omitted).]

We are satisfied that the hearsay statement in this case was not clearly capable of producing an unjust result. First and most importantly, the trial judge gave a curative instruction immediately after the hearsay statement was elicited. The instruction emphatically indicated that the jury was not to consider the statement as evidence against defendant. See Winter, supra, 96 N.J. at 649 (concluding that any prejudice resulting from an inadmissible statement by an expert witness was alleviated by the trial court's immediate, sharp, and complete curative instruction.)

Second, the evidence against defendant was substantial. See Wakefield, supra, 190 N.J. at 473 (noting that "any finding of plain error depends on an evaluation of the overall strength of the State's case.") There was the testimony of Dawn, his girlfriend and mother of his child, indicating that defendant directly participated in the robbery. Similar testimony was proffered from Messina. Moreover, when defendant was confronted at the police station by the police, he initially denied his true identity and, indeed, was traveling under an alias, leading to an inference of his guilt.

Finally, Dawn herself, the declarant, testified at trial. See Hill v. N.J. Dep't of Corr. Comm'r Fauver, 342 N.J. Super. 273, 300 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). She was subjected to full cross-examination and the jury had an opportunity to evaluate her credibility as well as Messina's. In fact, on the critical issue of who planned the robbery, Dawn repeatedly testified at trial that it was Rodney, not defendant, who devised the plan. We recognize, of course, the fact that Dawn testified does not render admissible what might otherwise be inadmissible hearsay - not being subject to cross-examination at the time of the challenged statement. However, we conclude that since the jury had the opportunity to hear, weigh, and evaluate the testimony of Dawn as well as Messina regarding the making of the statement, the error, if any, was not clearly capable of producing an unjust result.

(iv)

Lastly, defendant challenges his sentence as violative of State v. Natale, supra, and State v. Thomas, supra, and as excessive because consecutive terms were imposed. We agree and remand for resentencing.

As to the former, defendant was sentenced to an extended term that exceeded the then presumptive extended-term sentence for a first-degree offense. His sentence was imposed on February 4, 2005, prior to the Court's Natale decision, and therefore falls within the "pipeline" for retroactive application of Natale. 184 N.J. at 494; see also Thomas, supra, 188 N.J. at 152.

As to the latter, as noted, defendant was sentenced to consecutive terms for robbery and unlawful possession of a weapon without a permit. The judge reasoned:

And that sentence will be consecutive to the sentence on count two. Because if that gun had never been brought to that scene, this lady would still be alive, so deciding to bring the gun, taking the gun, using the gun during the robbery, all of that is something that is a factor in this sentence.

Defendant argues the court abused its discretion in imposing consecutive terms because the possession of the weapon and robbery were not independent of each other and because the court double-counted the existence of the gun, which elevated the crime to that of first-degree robbery, further exposed defendant to mandatory extended-term sentencing as a second Graves Act offender, and was then used as a basis for consecutive terms.

N.J.S.A. 2C:44-5(a) provides in relevant part that "[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." Although this determination is left to the discretion of the trial judge, see State in re T.B., 134 N.J. 382, 385 (1993), New Jersey's Criminal Code "does not set forth any standards to guide the court's discretion in deciding whether to impose 'consecutive or concurrent sentences . . . when a defendant is convicted of multiple offenses.'" State v. Abdullah, 184 N.J. 497, 512-13 (2005) (alteration in original) (citation omitted). As such, "[t]o bring rationality to the process and to further the goal of sentencing uniformity," ibid., the Court, in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), partially superceded by N.J.S.A. 2C:44-5(a), developed criteria to be applied in making those determinations. They are as follows:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Id. at 643-44 (footnote omitted).]

The third guideline, which focuses on the "'facts relating to the crimes[,]'" State v. Carey, 168 N.J. 413, 423 (2001), "generally concentrate[s] on such considerations as the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." Ibid. These considerations should be applied qualitatively and not quantitatively. Id. at 427.

In State v. Copling, 326 N.J. Super. 417 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000), we reversed a sentence of consecutive terms for murder and unlawful possession of a handgun without a permit. Id. at 422-23, 440. After setting forth the Yarbough factors, we reasoned:

Here, the judge reasoned that the objectives and purposes of the crimes for weapons possession and murder are different, and the victims as well were different. Whereas the victim of the murder and manslaughter charges were K.C. and Malik, the true victim of unlawful possession of a handgun is society as a whole. The judge determined that only two of the five Yarbough factors applied, yet imposed a consecutive sentence. The objective and purpose of the unlawful possession statute is to regulate and monitor those who possess weapons, presumably to prevent irresponsible owners from possessing weapons. The ultimate goal is to protect others from being killed by those who own weapons. There is a strong legislative policy in this State with respect to gun control, designed to protect the public, which places restrictions on those who may carry such weapons and is intended to prevent criminal and other unfit elements from acquiring and possessing them. The purpose of the murder statute is obviously to protect the public and individuals from unlawful killing. Thus, the objective of each is similar. Furthermore, the victims sought to be protected by the two statutes are the same. Both K.C. and Malik were part of the group of victims in society whom the possessions statute sought to protect.

The judge's rationale for imposing consecutive sentences is unsupported under the Yarbough analysis because only two factors applied, and in view of the life term with thirty years of parole ineligibility, the consecutive sentences must be deemed unreasonable. The conviction for unlawful possession must be served concurrently to the conviction for murder.

[Id. at 441-42 (internal citations and quotes omitted).]

Following this reasoning, we conclude that the imposition of consecutive terms in this case was a mistaken exercise of discretion. Under Yarbough factor 3(a), the objectives of both the robbery and weapons statutes are similar - to protect the public. Yarbough factor 3(b) also supports a concurrent sentence - the gun was used as part of the robbery and thus, the crime did not involve separate acts of violence or threats of violence. Likewise, under Yarbough factor 3(c), the crimes were committed at the same time and in the same place. In other words, they were committed so closely in time and place as to indicate a single period of aberrant behavior.

As to Yarbough factor 3(d) - multiple victims - we disagree with the sentencing judge's analysis. Although Ebony died as a result of the incident, defendant was not charged with her murder, and the indictment against him is limited to acts against Messina. Therefore, with relation to the crimes for which defendant was convicted, there was only one victim - Messina. As such, this factor also weighs in favor of concurrent sentences. Under Yarbough factor 3(e), defendant's convictions are not numerous.

Finally, Yarbough factor 4 - there should be no double counting of aggravating factors - also weighs in favor of a concurrent sentence. "We emphasize, as we did in Yarbough, that the factors invoked by the Legislature to establish the degree of the crime should not be double counted when calculating the length of sentence." State v. Miller, 108 N.J. 112, 122 (1987).

In State v. Jones, 66 N.J. 563 (1975), a case decided before Yarbough, defendant was convicted of assault with intent to commit robbery, committing the assault when armed, and possession of a weapon after having been convicted of a serious crime. Id. at 565. The trial judge sentenced defendant as follows: "for the assault with intent to commit robbery, a sentence of not less than 11 nor more than 12 years; for committing the assault when armed, an additional sentence of not less than 9 nor more than 10 years to be served consecutively to the sentence for assault; for possession of a weapon after having been convicted of serious crime, a sentence of not less than 2 nor more than 3 years, to be served consecutively to the other two sentences." Ibid. On appeal, we reversed, concluding that to sentence defendant to a consecutive sentence for carrying a firearm was unduly harsh.

[d]efendant was also sentenced to a consecutive term of 2 to 3 years for possession of a weapon after having been convicted of a serious crime. We think the sentence imposed should have been made concurrent to the other sentences rather than consecutive. Defendant had already received an additional consecutive sentence of 9 to 10 years for being armed when the assault was committed. To add on a consecutive sentence of 2 to 3 years for possession of the same weapon used in the armed assault seems to us to be unduly punitive. Defendant's sentence is modified accordingly.

[Id. at 567-68.]

Here, we conclude that in imposing consecutive terms, the sentencing judge relied on some of the same factors that the Legislature invoked to establish the elevated degree of the crime as well as the enhanced nature of the Graves Act sentence. As noted, the presence of the handgun raised defendant's conviction from a second-degree crime to a first-degree offense, N.J.S.A. 2C:15-1(b), and formed the basis for Graves Act extended-term sentencing. N.J.S.A. 2C:43-6(c). As such, a consecutive sentence for possessing a firearm without a permit would amount to double counting of an aggravating factor. Accordingly, Yarbough factor 4 also weighs in favor of a concurrent sentence.

In sum, the clear weight of Yarbough factors, both qualitatively and quantitatively, favor imposition of concurrent terms and the court's decision to the contrary is a mistaken exercise of discretion.

 
The matter is remanded for resentencing in accordance with State v. Natale, supra, and State v. Thomas, supra. We vacate the consecutive feature of the sentence imposed on count four, and affirm the judgment of conviction in all other respects.

Actually, it was the State who opined that the juror should be replaced with the alternate.

In fact, defendant's real name is never actually mentioned in the challenged testimony. Messina simply states that Dawn told him that her baby's father orchestrated the robbery.

Following the Court's decision in Yarbough, "the Legislature amended N.J.S.A. 2C:44-5(a) to provide that '[t]here shall be no overall outer limit on the cumulation of consecutive sentences,' thereby eliminating guideline number six." State v. Carey, 168 N.J. 413, 423 (2001) (citation omitted).

(continued)

(continued)

35

A-2652-05T4

April 24, 2008