STATE OF NEW JERSEY v. JAROD HARRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5196-05T4 5196-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAROD HARRIS,

Defendant-Appellant.

_____________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Fisher, Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1829.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jarod Harris appeals from the judgment of conviction and sentence imposed following a jury trial at which he was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (Count One); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (Count Two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Three). At sentencing, the court imposed an aggregate forty-eight year period of incarceration with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The crimes for which defendant was convicted arose out of the January 20, 2003 slaying of Andre Simmons, who was found lying in a lot on Brenner Street in Newark after having been shot multiple times. When police arrived, Simmons was transported to a local hospital where he was pronounced dead. Police recovered five nine-millimeter casings, along with a black hat, from the crime scene. Two months after Simmons' fatal shooting, police responded to the area of the crime scene on a report of "recent shootings in the area." Police recovered a nine-millimeter revolver from under the staircase of an abandoned residence at 32 Kent Street.

The salient facts presented at trial pertinent to our discussion were disclosed by the victim's wife, two witnesses from the scene and defendant's girlfriend. According to the victim's wife, Patricia Simmons, defendant and Simmons had been friends since childhood but the relationship changed following the slaying of defendant's brother, Larry Harris. Defendant suspected that Simmons had been involved with his brother's murder. Following Larry's death, Patricia witnessed defendant confronting her husband about Larry's death on three occasions, with the last confrontation occurring three weeks before his death. At that time, defendant approached a vehicle in which she was seated with her sister and he began to flirt with her sister. When Simmons approached the vehicle, defendant's demeanor changed and he questioned Simmons about whether he had been involved with his brother's murder. Simmons denied having anything to do with the killing.

Precious King testified that she lived near the crime scene and had gone to a local store around 9:00 p.m. on the evening of the shooting. As she was entering the store, she saw defendant, whom she had known since childhood, arguing with Simmons about Larry's death. She heard Simmons deny any involvement and tell defendant that he was married, had a family, and would not "stoop to that level." She said the argument continued outside while she was in the store and, when she exited, she heard someone tell defendant "that it wasn't worth it." She then entered her vehicle, driven by her husband, and as their vehicle turned right onto 10th Street, she saw Simmons walking away from the area where defendant had confronted him. She proceeded to her house on Kent Street, which runs parallel to Brenner Street. Before entering her house, she heard six or seven shots, went in the direction of the shots she heard and found Simmons on the ground. Defendant was there and she heard him say "something about being Blood for Blood." She also observed defendant holding what appeared to be a pistol. She then saw a "young boy" approach defendant, take the pistol, and say to defendant, "it's not worth it."

Betty Rollins testified that she lived at 15 Brenner Street, which is across from the vacant lot where Simmons was shot. She had known defendant and Simmons for more than a dozen years. Around 9:30 p.m. on the evening of the shooting, she approached the front window on the first floor of her home to see if her cat was there. She peered out the window and noticed Simmons entering the empty lot with defendant approaching Simmons from behind. When defendant reached him, Simmons removed his hands from his pockets and raised his fists as if to defend himself, at which point defendant then began firing shots at Simmons. Rollins heard seven or more shots fired. She indicated that the men were only about six to eight feet from one another. She observed Simmons fall to the ground and defendant flee towards Kent Street. She testified that she could not see a gun during the shooting but she saw defendant carrying a gun when he left the scene. She then exited her home, yelled to a neighbor to call the police, and proceeded to comfort Simmons, who was unable to talk. Rollins also testified that in November 2002, she recalled hearing defendant state, in Simmons' presence, that he was "going to get everyone who had something to do with his late brother's death."

During the course of the investigation, police learned that Kena Whitlock was defendant's girlfriend. She agreed to speak to the police. In a sworn statement, Whitlock told police that a couple of days after the murder, defendant told her that he had shot someone in Newark for reasons associated with Larry's death. She and defendant discussed the possibility of him surrendering to authorities. She explained that defendant considered doing so because "he was stressing about the whole situation."

A few days after giving her statement, Whitlock attempted suicide. She subsequently returned to the police station seeking to retract portions of her statement, but was not given an opportunity to do so. At trial, Whitlock initially took the witness stand before the jury and when the prosecutor asked her where she lived, she responded, "I refuse to testify." However, she apparently changed her mind after further discussions with her attorney and testified several days later.

Whitlock testified that the earlier sworn statement she provided to police had not been a truthful statement. She indicated she lied because the police told her that if she refused to cooperate, she could be charged with murder and conspiracy. She told the jury that none of the statements she made about what defendant said to her was true.

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

POINT I

THE SEQUENTIAL "GUILTY FIRST" JURY INSTRUCTIONS AND VERDICT SHEET, TOLD THE JURY, IN VIOLATION OF STATE V. COYLE, 119 N.J. 194 (1990), TO DELIBERATE ON PASSION/PROVOCATION MANSLAUGHTER ONLY AFTER FINDING DEFENDANT GUILTY OF MURDER. FURTHERMORE, THE INSTRUCTIONS ON THE BURDEN OF PROOF WERE AMBIGUOUS. IN ONE INSTANCE THE JUDGE CORRECTLY INSTRUCTED THE JURY ON THE STATE'S BURDEN TO DISPROVE THE ELEMENTS OF PASSION/PROVOCATION MANSLAUGHTER. HOWEVER, IN OTHER INSTANCES, INCLUDING ON THE VERDICT SHEET, THE JUDGE IMPLICITLY SHIFTED TO DEFENDANT THE BURDEN OF PROVING HE ACTED IN THE HEAT OF PASSION FROM A REASONABLE PROVOCATION. (NOT RAISED BELOW).

POINT II

THE ADMISSION OF KENA WHITLOCK'S PRIOR INCONSISTENT STATEMENTS WAS CONTRARY TO THE LAW OF STATE V. GROSS, 121 N.J. 1 (1990), AND DENIED DEFENDANT A FAIR TRIAL AND HIS RIGHT TO CONFRONTATION. (U.S. CONST. AMEND. VI; N.J. CONST. [] ART. I, [ ] 10).

POINT III

THE COURT MADE TWO INSTRUCTIONAL ERRORS BY OMISSION[,] BOTH OF WHICH WERE FATAL TO DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. THE COURT ERRED IN FAILING TO CAUTION THE JURY AS TO THE UNRELIABLE NATURE OF TESTIMONY ATTESTING TO NON-MEMORIALIZED ORAL STATEMENTS MADE BY THE DEFENDANT. THE COURT FURTHER ERRED IN FAILING TO PROPERLY INSTRUCT THE JURY AFTER A WITNESS REFUSED TO TESTIFY BEFORE THEM. (NOT RAISED BELOW).

A. THE COURT FAILED TO CAUTION THE JURY ON THE INHERENT UNRELIABILITY OF ORAL STATEMENTS.

B. DEFENDANT WAS DENIED A FAIR TRIAL BY THE COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY AFTER A WITNESS REFUSED TO TESTIFY BEFORE THEM.

POINT IV

THE PROCEDURE FOR ADMISSION TO DEFENDANT'S TRIAL AUTHORIZED BY THE COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A PUBLIC TRIAL. (PARTIALLY RAISED BELOW).

POINT V

THE SENTENCE IMPOSED ON THE MURDER CONVICTION IS MANIFESTLY EXCESSIVE. THE SENTENCE IMPOSED ON THE UNLAWFUL POSSESSION OF A WEAPON CONVICTION VIOLATES DEFENDANT'S RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY TRIAL.

A. THE 48[-]YEAR TERM IS MANIFESTLY EXCESSIVE.

B. THE MAXIMUM TERM ON THE THIRD-DEGREE OFFENSE VIOLATES DEFENDANT'S RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY TRIAL.

Based upon our careful review of the record and in light of the applicable legal principles, we reject each of the points raised. With the exception of the arguments raised in support of Points I, III and V, the remaining arguments advanced in support of Points II and IV are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

I.

Defendant contends the court's instruction on murder and passion/provocation manslaughter required the jury to first find defendant guilty of murder before considering passion/provocation manslaughter and, in doing so, wrongfully shifted the State's burden to prove the elements of manslaughter to defendant. We disagree.

Initially, because the defense did not raise an objection to the court's charge on murder and passion/provocation manslaughter, we review the jury instructions under the plain error standard. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997) (stating that a "reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result"). Plain error is not simply any possibility of error but is an error of such consequence, to raise "a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Clear and understandable jury instructions are essential in giving a criminal defendant a fair trial. State v. Concepcion, 111 N.J. 373, 379 (1988). Thus, the trial court has a duty to clearly instruct a jury on the law governing the case. State v. Butler, 27 N.J. 560, 595 (1958). The charge provided by the court must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). In determining whether there is error in a charge, the charge must be read as a whole, and portions of a charge that are allegedly erroneous cannot be examined in isolation. State v. Garland, 149 N.J. 456, 473 (1997).

In State v. Coyle, 119 N.J. 194, 221 (1990), the Court addressed the required jury instructions that must be given where evidence in the record supports a finding of passion/provocation. The Court noted that where evidence of passion/provocation exists, the State may only obtain a murder conviction if it proves beyond a reasonable doubt that the purposeful killing was not the product of passion/provocation. Ibid. (citing State v. Powell, 84 N.J. 305, 314 (1980)).

Here, prior to giving full instructions on the murder charge, the court instructed the jury that

first you are asked as to the charge of murder. You have a little shorthand reminder there [on the verdict sheet]. That in no way suggests the elements for the offense of murder. You are going to hear those set out by me in a moment. You are asked to tell us whether, given your analysis, consideration of the testimony and evidence, not guilty of murder, guilty of murder in conjunction with my instructions.

You are given a direction there. Next, if you find the defendant guilty of murder, do you find that he was acting purposely or knowingly in the heat of passion . . . resulting from a reasonable[] provocation.

As instructed here, the court directed that the sequence of the jury's deliberation required that it first decide whether the State met its burden of proof on knowing, purposeful murder before it could consider passion/provocation manslaughter. At the time jurors were given this instruction, they had not yet received copies of the verdict sheet and the court was reading from its notes. The court was advised that the verdict sheet was not yet ready. Thus, it thereafter proceeded to instruct the jury on the elements of murder and passion/provocation manslaughter without the jurors simultaneously viewing a verdict sheet. The court's instructions proceeded as follows:

A person is guilty of murder if, one, he caused the victim's death or serious bodily injury that then resulted in death; and, second, that the defendant did so purposefully or knowingly and; third, did not act in the heat of passion resulting from a reasonable provocation.

If you find beyond a reasonable doubt that the defendant purposely or knowingly caused Andre Simmons' death, or caused serious bodily injury that then resulted in death, and that he did not act in the heat of passion resulting from a reasonable provocation, the defendant will be guilty of murder.

If, however, you find that the defendant purposely or knowingly caused death or serious bodily injury that then resulted in death, and that he did act in the heat of passion, resulting from a reasonable provocation, defendant will be guilty of passion/provocation manslaughter.

Now, in order for you to find the defendant guilty of murder, the State is required to prove each of the following elements beyond a reasonable doubt:

One, that the Defendant Harris caused Andre Simmons's death, or serious bodily injury that then resulted in his death.

Second, that the Defendant Harris did so purposely or knowingly.

And, thirdly, that the Defendant Harris did not act in the heat of passion resulting from a reasonable provocation.

Later, after addressing the first two elements of the State's burden of proof, the court proceeded to specifically charge the jury on the third element the State was required to proved beyond a reasonable doubt:

The third element that the State must prove beyond a reasonable doubt to find Defendant Harris guilty of murder is that Mr. Harris did not act in the heat of passion resulting from a reasonable provocation.

Passion/provocation manslaughter is a death caused purposely or knowingly that is committed in the heat of passion resulting from a reasonable provocation. Passion/provocation manslaughter has four factors which distinguish it from murder.

In order for you to find defendant guilty of murder, the State need only prove the absence of any one of those four elements beyond a reasonable doubt. Those four elements are:

One, there was adequate provocation.

Second, the provocation actually impassioned Defendant Harris.

Third, Defendant Harris did not have a reasonable time to cool off between the provocation and the act which caused death.

And, four, Defendant Harris did not actually cool off before committing the act which caused death.

The State must prove beyond a reasonable doubt, need only prove the absence of any one of those elements.

. . . .

If you determine that the State has proven beyond a reasonable doubt that there was not adequate provocation or that the provocation did not actually impassion Defendant Harris, or that Mr. Harris had a reasonable time to cool off, or that he actually cooled off, in addition to proving one of those four factors, if you determine that the State has proven beyond a reasonable doubt that Mr. Harris purposely or knowingly caused death or serious bodily injury resulting in death, you must find him guilty of murder.

If, on the other hand, you determine that the State has not disproved at least one of the four factors of passion/provocation manslaughter beyond a reasonable doubt, but that the State has proven beyond a reasonable doubt that Defendant Harris purposely or knowingly caused death or serious bodily injury resulting in death, then you must find him guilty of passion/provocation murder.

Just before the court instructed the jury on the weapons offenses, the verdict sheets were ready. The court once again, albeit briefly this time, reviewed the elements of murder the State was required to prove beyond a reasonable doubt, and mistakenly gave a sequential instruction again:

[B]efore we get into the weapons[] offenses, you're asked to decide whether the defendant purposely or knowingly caused the death of Andre Simmons by his own conduct.

Not guilty of murder; guilty of murder.

And then if you find defendant guilty of murder, do you find he was acting purposely or knowingly in the heat of passion resulting from reasonable provocation causing the death of Andre Simmons.

Yes or no.

The court, however, then immediately provided the jury with the proper instruction on murder and passion/provocation manslaughter:

The elements of murder that have been discussed with you, a person is guilty of murder if he first caused [sic] victim's death, or serious bodily injury that then resulted in death.

Second, the defendant did so purposely or knowingly.

Third, that he did not act in the heat of passion resulting from a reasonable provocation, and that suggests the answer, yes or no answer there that we're asking for.

In order to find defendant guilty of murder, the State is required to prove the following elements beyond a reasonable doubt:

First, that defendant caused Andre Simmons' death, or serious bodily injury that then resulted in his death.

Second, that he did so purposely or knowingly, and I have defined those terms for you.

Third, that defendant did not act in the heat of passion resulting from a reasonable provocation, and I have discussed that with you. That is the situation where you are - - you review, consider the elements that the State, the four elements that the State, one of which the State must disprove.

If the State disproves one element beyond a reasonable doubt, then defendant must be found guilty of murder, if you are satisfied that the elements of that have been proven.

If the State cannot - - has not discounted any of those four elements, then passion/provocation manslaughter is the verdict.

Hopefully, looking at the verdict form should set in your mind the instructions that I have just given you.

It is clear, from a review of the entire jury charge, that the court repeatedly made clear that defendant could only be found guilty of murder if the State proved beyond a reasonable doubt that the purposeful killing was not the product of passion/provocation. Coyle, supra, 119 N.J. at 221 (citing State v. Powell, supra, 84 N.J. at 314). Moreover, the verdict sheet actually provided to the jurors was not inconsistent with this instruction. Finally, at no time did any of the court's instructions on murder and passion/provocation manslaughter shift the burden of proof to defendant. Hence, we discern no error capable of producing an unjust result stemming from the court's instructions on murder and passion/provocation manslaughter.

II.

Next, the court permitted witnesses Rollins, Simmons and King to testify about repeated inculpatory statements attributed to defendant. Defendant claims these witnesses were allowed to testify without accompanying instructions from the court on the "inherent weaknesses" of such statements and that consideration of these statements "should be received with caution." State v. Kociolek, 23 N.J. 400, 421 (1957). Because these statements were admitted without objection, they too are reviewed under the plain error standard, namely, whether their admission without the requisite instructions was capable of producing an unjust result. R. 2:10-2.

In Kociolek, supra, the Court held that a criminal defendant is entitled to an instruction that jurors "receive, weigh and consider . . . with caution" testimony concerning out-of-court incriminating statements made by a defendant. Ibid.; see also State v. Harris, 156 N.J. 122, 182 (1998). In requiring trial judges to give a Kociolek instruction, the Court recognized the general "risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer" that renders such evidence potentially untrustworthy. Kociolek, supra, 23 N.J. at 421.

The failure to give a Kociolek charge, however, is not per se error. State v. Jordan, 147 N.J. 409, 425-26, 428 (1997); Harris, supra, 156 N.J. at 183. Where, as in this case, a Kociolek charge has not been requested, reversal is warranted "only when, in the context of the entire case, the omission is 'clearly capable of producing an unjust result.'" State v. Jordan, supra, 147 N.J. at 425, 428 (quoting Rule 2:10-2). Moreover, if the statement being offered is "clear and unequivocal," there is no error in failing to give a Kociolek charge, State v. Baldwin, 296 N.J. Super. 391, 401 (App. Div. 1997), certif. denied, 149 N.J. 143 (1997), because "[t]he meaning of such statements does not turn on any nuances of language, and the circumstances under which the statements [were made] do not present any substantial 'risk of inaccuracy.'" Ibid. (quoting Kociolek, supra, 23 N.J. at 421). The statements here were clear and unequivocally uttered. They were heard by persons who knew both Simmons and defendant. Additionally, the statements were heard under circumstances where the witnesses were in close proximity to defendant at the time he uttered the statements.

Further, where there is other substantial evidence of a defendant's guilt, the failure to give the Kociolek charge does not require reversal. State v. Candelaria, 311 N.J. Super. 437, 449-50 (App. Div. 1998), certif. denied, 155 N.J. 587 (1998); State v. Crumb, 307 N.J. Super. 204, 251 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). The evidence of defendant's guilt was overwhelming. Witnesses placed him at the scene, observed him confronting Simmons, firing shots at him, and leaving the scene with a weapon shortly after the shooting occurred.

Likewise, the record before us does not support, as defendant claims, reversal because the court failed to give the appropriate jury instruction on the voluntariness of the statements attributed to defendant. State v. Hampton, 61 N.J. 250 (1972). In Hampton, the Court held that if a court determines that an inculpatory statement made by a defendant is admissible, the court must instruct jurors that they should decide whether, in view of all the circumstances, the defendant's statements are true, id. at 272, and if they find the statements are untrue, then they must treat the statements as inadmissible and disregard them for purposes of discharging their function as fact-finders on the ultimate issue of guilt or innocence. Ibid. See also N.J.R.E. 104(c). However, as with a court's failure to give a Kociolek instruction where no such instruction has been requested, reversal is only required where the failure to give a Hampton charge was clearly capable of producing an unjust result. Harris, supra, 156 N.J. at 182-83; Jordan, supra, 147 N.J. at 425-26. We discern no such error based upon our review of this record.

In short, as long as the issue of the reliability of the defendant's incriminating statements has been adequately placed before the jury, no plain error can be demonstrated. State v. Feaster, 156 N.J. 1, 73 (1998), cert. denied, sub nom. Kenney v. N.J., 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We are satisfied from our review of the trial court's instructions to the jury on credibility that it squarely placed before the jury not only the credibility of the witnesses' testimony, but also the reliability and voluntariness of the statements they each attributed to defendant:

Now, in deciding the facts of this case, you must decide which witnesses to believe and which witnesses not to believe. You may believe some, all, or nothing of what a witness says. In deciding what to believe, and in considering the credibility of the witnesses, you should consider several factors.

First, you should bring to this task all those skills you have developed over the years in judging the credibility of people in your daily lives.

Each of you has had important experiences in your social life, in your family affairs, and in business, amongst other places, where you have to decide whether someone is telling the truth.

You may want to consider other factors, such as does the witness have an interest in the outcome of the case. Does the witness have some bias or prejudice for or against one side or another. How good or accurate is the witness' recollection. What was the witness' ability to know what the witness was talking about.

You may consider the demeanor of the witness. By that I mean the way the witness acted, the way the witness spoke, or the way the witness reacted to certain questions.

Is the witness' testimony reasonable when considered in the light of all other evidence that you believe. Is the witness either corroborated, or contradicted, supported, or discredited by other evidence.

Use your common sense when evaluating the testimony of a witness. If a witness told you something that did not make sense, you have a right to reject that testimony. On the other hand, if what the witness said seemed reasonable and logical, you have a right to accept that testimony.

If there are inconsistencies in a witness' testimony, or between the witness' testimony and that of another witness, you must decide what to believe. Two or more people witnessing an incident may see or hear it differently. Sometimes people forget things and sometimes people honestly believe they remember something, but it turns out to be wrong.

In weighing the effect of an inconsistency, consider whether it concerns something important or unimportant, consider if it results from an innocent error, or willful falsehood.

In doing so, you may also consider whether it was brought out in the witness' direct testimony or during cross-examination. You should also consider any explanation that the witness may have given.

Evidence, including a witness' statement prior to trial, before trial, showing that at a prior time a witness has said something which is inconsistent with the witness' testimony at the trial, may be considered by you for the purpose of judging the witness' credibility.

It may also be considered by you as substantive evidence; that is as proof of the truth of what is stated in the prior contradictory statement.

Evidence has been presented showing that at a prior time witnesses who have testified here have said something, or have failed to say something which is inconsistent with the witness' testimony at the trial.

This evidence may be considered by you as substantive evidence or proof of the truth of the prior contradictory statement or omitted statement.

However, before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness, you will want to consider all of the circumstances under which the statement or failure to disclose occurred.

You may consider the extent of the inconsistency or omission, and the importance or lack of importance of the inconsistency or omission on the overall testimony of the witness as bearing on his or her credibility.

You may consider such factors as where and when the prior statement or omission occurred, and the reasons, if any, therefore. The extent to which such inconsistencies or omissions reflect the truth is for you to determine.

Consider their materiality and relationship to the witness' entire testimony and all the evidence in the case; when, where, and the circumstances under which they were said or omitted, and whether the reasons given for them appear to be believable and logical to you.

In short, consider all that I have told you before about prior inconsistent statements or omissions.

Now, you will, of course, consider other evidence, and inferences from other evidence, including statements of other witnesses, or acts of the witness and others disclosing other motives that the witness may have had to testify as the witness did; that is, reasons other than which the witness gave to us here at the trial.

Additionally, the court provided a "false in one, false in all" charge and provided direction to the jury as to how it should weigh discrepancies in the evidence, and in particular, inconsistent statements.

Further, the court directly addressed the evidence presented that Kena Whitlock, at a prior time, made a statement that was inconsistent with her trial testimony. The court instructed the jury to consider a number of factors in assessing her credibility, in particular including: the circumstances under which the statement was given, her physical and mental condition at the time she gave the statement, whether she incriminated herself or sought to exculpate herself, whether the statement was given in writing, the presence or absence of any motive to fabricate, explicit or implicit pressures, inducement or coercion, and the inherent believability or lack of believability of the statement. Additionally, because Whitlock ultimately testified, we discern no error in the court's failure to instruct the jury after her initial refusal to testify that it should draw no inferences against defendant as a result of her failure to testify. See State v. Burns, 192 N.J 312, 333 (2007).

We therefore view the effect of the court's comprehensive instructions on how to evaluate the credibility of the testimony from these witnesses who testified about statements defendant made to them or in their presence, the cross-examination undertaken of the witnesses by defense counsel, and the challenges to the witnesses' credibility during defense counsel's summation, as precluding a finding that the court committed plain error when it failed to give a Hampton/Kociolek charge. R. 2:10-2.

III.

We next turn to defendant's challenges to the sentences imposed on the crimes for which he was convicted. Defendant first claims that, based on the aggravating factors considered by the trial court, his forty-eight-year aggregate sentence is excessive.

State v. Roth, 95 N.J. 334 (1984), outlines three general steps for sentencing a criminal defendant. First, the court determines whether incarceration is appropriate, considering the presumption of imprisonment under N.J.S.A. 2C:44-1(d). Roth, supra, 95 N.J. at 358. Second, the court must decide on an appropriate sentence. Id. at 359. Third, the court must decide whether parole ineligibility is required. Ibid. N.J.S.A. 2C:44-1(a) and (b) provide aggravating and mitigating factors the court must consider prior to imposing sentence. See State v. Yarbough, 195 N.J. Super. 135, 143 (App. Div. 1984), rev'd on other grounds, 100 N.J. 627 (1985). Additionally, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, the court may set a minimum period of parole ineligibility. See State v. Kruse, 105 N.J. 354, 359 (1987); N.J.S.A. 2C:43-6(b). The term of parole ineligibility may generally not be more than one-half of the overall term. N.J.S.A. 2C:43-6(b).

A sentencing judge must employ proper legal principles and the final sentence must be based on "competent, reasonably credible evidence." State v. C.H., 264 N.J. Super. 112, 139 (App. Div.) (quoting State v. Roth, supra, 95 N.J. at 363 (1984)), certif. denied, 134 N.J. 479 (1993). The trial court must describe the process it undertook to arrive at the final sentence. State v. Boyer, 221 N.J. Super. 387, 405 (App. Div. 1987) (citing State v. Kruse, supra, 105 N.J. at 358-60), certif. denied, 110 N.J. 299 (1988).

Here the trial court found aggravating factor two, N.J.S.A. 2C:44-1(a)(2), applicable, as defendant "knew or reasonably should have known that the victim was particularly vulnerable at the time of the commission of [the] murder or incapable of resistance[,]" because defendant stalked Simmons and shot at him while Simmons was walking away from defendant.

The court also found that aggravating factor five, N.J.S.A. 2C:44-1(a)(5) applied because there was a substantial likelihood that defendant was involved in organized criminal/gang activity. The court referenced information that it credited from the Gang Intelligence Unit, within the facility where defendant was being held pretrial, the court's personal knowledge that "retribution is part of an unfortunate code which is adopted by young people today who are involved in gang activity," and events that occurred during the course of the trial that led the court to issue protective orders and special security measures during the course of pretrial motions and the trial.

Finally, based upon defendant's prior juvenile adjudications and his three indictable convictions, the court determined that there was a need to deter defendant and others from violating the law, aggravating factor nine, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors.

The statutory window for sentencing a defendant for first-degree murder ranges from thirty years to life. N.J.S.A. 2C:11-3b. Under NERA, when sentencing a defendant convicted of first-degree murder, a court "shall fix a minimum term of [eighty-five percent] of the sentence imposed, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:43-7.2a and d(1).

While we are satisfied that there is substantial credible evidence in the record to support the trial court's finding of aggravating factors five and nine, as well as the absence of any mitigating factors, we do not agree that aggravating factor two applies. The court justified application of aggravating factor two based upon its finding that defendant stalked Simmons and shot him while he was walking away from defendant. We presume the court believed that Simmons was surprised by the attack and defenseless.

In State v. Abrams, 256 N.J. Super. 390 (App. Div.), certif. denied, 130 N.J. 395 (1992), the victim arrived home with his wife and attempted to open the garage door. The defendant, an alleged paramour of the victim's wife, approached and shot the victim with a shotgun. At sentencing, the trial court found the victim particularly vulnerable because of the apparent surprise attack. We reversed the sentence and remanded to the trial court for reconsideration, as we were "unable to discern a factual basis for the court's finding as an aggravating factor that [the victim] was particularly vulnerable," meaning, the surprise circumstances of the murder, with the victim being unarmed and overpowered, as a basis to justify application of aggravating factor two. Id. at 404. We reach the same conclusion here.

The removal of aggravating factor two from consideration, however, does not require reversal of the sentence imposed on the murder conviction. Based upon the remaining aggravating factors and the absence of any mitigating factors, the imposition of the forty-eight-year custodial sentence was well within the appropriate term for murder of between thirty years to life. Consequently, there is no basis to disturb the sentence imposed in connection with the murder conviction.

With respect to the five-year sentence imposed on the third-degree unlawful possession of a weapon conviction, the authorized custodial sentence for a third-degree crime ranges from three to five years. N.J.S.A. 2C:43-6(3). Relying upon the same aggravating factors and finding no mitigating factors, the court imposed the maximum five-year term. Subsequent to the imposition of defendant's sentence, the Court decided State v. Natale, 184 N.J. 458 (2005) (Natale II), where it held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Id. at 466. The Court determined that the elimination of presumptive terms applies "retroactively to cases in the pipeline." Id. at 494. Since this appeal was pending when Natale II was decided, it is subject to Natale II's dictates. See ibid. (defining pipeline retroactivity as applying the ruling to "defendants with cases on direct appeal as of the date of [the] decision and to those defendants who raised Blakely claims at trial or on direct appeal"). Thus, defendant is entitled to a new hearing to determine "whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence" with regard to the weapons offense. Id. at 495-96.

 
Affirmed in part, remanded for re-sentencing pursuant to Natale II, without consideration of aggravating factor two. We do not retain jurisdiction.

Expert testimony during the trial linked the revolver to the fatal shooting.

Because the victim and Patricia Simmons shared the same last name, as did the defendant and his brother Larry Harris, we refer to Ms. Simmons as Patricia and the decedent Larry Harris as Larry. In doing so, we intend no disrespect.

The empty lot where Andre Simmons was found shot was located between Brenner and Kent Streets.

The judge initially instructed that "extreme" provocation was necessary but the instruction was corrected to state "reasonable."

Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 412 (2004) (holding "'[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt'")(quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000)).

(continued)

(continued)

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A-5196-05T4

November 30, 2009