STATE OF NEW JERSEY v. ZARIK ROSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5418-06T45418-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZARIK ROSE,

Defendant-Appellant.

__________________________________________________

 

Submitted October 1, 2009 - Decided

Before Judges Fisher, Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-04-0377.

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

Anne Milgram, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

Appellant submitted two supplemental pro se briefs.

PER CURIAM

Defendant was convicted, after a trial, of being an accomplice to the murder and felony murder of Charles Mosley in 1997. In this appeal, we consider among other things whether defendant's right to a fair trial was prejudiced by the admission of an indictment, which charged him with the attempted murder of Mosley on an earlier occasion. Finding no error, we affirm.

The jury heard testimony that defendant was incarcerated in July 1995 awaiting trial on an indictment which charged him with the attempted murder and robbery of Mosley. At that time, defendant befriended another inmate, Larry Graves.

Graves testified in this matter that defendant offered him "[a]bout $2,000 or $3,000" and "some drugs to sell" to kill Mosley. According to Graves, defendant provided him with Mosley's address in Franklinville, as well as his phone number and a description of Mosley's appearance. Defendant told Graves that Mosley sold cars, and instructed Graves to talk to Mosley about a vehicle in order to get into Mosley's office where the murder should take place.

Graves was released from jail in November 1997. He testified that on the day he was released he took a bus to Franklinville and telephoned Mosley. Learning Mosley was not home, Graves left Franklinville. He later received a collect call from defendant, who asked whether Graves had "sold the car" -- code for killing Mosley.

Graves went to Franklinville the next day. He made another call to Mosley's home. There was no response and Graves departed. Again, Graves received a call from defendant who seemed concerned that Graves had not yet "sold the car."

The next day, Graves found Mosley at home. He told Mosley he wanted to discuss one of the trucks on the lot. Mosley invited him into his office. After some conversation about the truck, Graves suspected that Mosley had suspicions because Mosley directed Graves's attention to a broken window and told Graves that the person who tried to break into his home was now "in the cemetery." Graves started to leave, but Mosley "jumped up and grabbed a crow bar or a lug wrench" and swung it at Graves. During the ensuing struggle, Graves struck Mosley on the head, causing a fracture and lacerations. At the end of the encounter, Graves choked Mosley for "[a] few minutes," until Mosley was dead. Graves later called defendant to advise that he had "sold the car."

Following discovery of Mosley's death, the pending charges against defendant were dismissed and he was released from jail.

A few months later, the police arrested Salvatore Puglio on drug distribution charges. As part of their investigation, the police came to learn that Puglio could obtain information into Mosley's death. Puglio agreed to wear a body wire to intercept his conversations with defendant.

On February 8, 1998, Puglio and an undercover officer posing as Puglio's girlfriend, while wearing body wires, engaged defendant in a conversation. Defendant indicated he had someone "knocked off" in order to avoid spending "my life . . . behind bars." A week later, Puglio and the undercover officer picked up defendant and drove through Franklinville; when they passed Mosley's residence, defendant gave Puglio a "thumbs up" sign. They again passed Mosley's residence a few days later, and, according to Puglio, defendant "performed a digging motion like he was shoveling and also a thumbs up sign."

Defendant was arrested and, following a waiver of his Miranda rights, he acknowledged he was Graves's cellmate but denied asking Graves to approach Mosley. Defendant admitted he knew Mosley from past drug transactions, but denied any involvement in Mosley's murder. In fact, defendant told the police that Graves approached him and admitted "he did in fact murder [Mosley], robbed him, and that he thought he was doing me a favor after he robbed him by murdering him." Defendant offered to wear a body wire and meet with Graves. The police agreed and dropped off defendant, while wearing a body wire, at his home so that he could obtain Graves's phone number. Defendant never approached Graves and the police later found the wire in defendant's backyard.

Despite these events, and the fact that the police had located Graves's fingerprint at Mosley's home, nothing occurred with the investigation until 2005, when the police interviewed Graves regarding Mosley's murder. Graves denied any involvement, but after hearing defendant's taped statements and after being informed his fingerprint was found in Mosley's office, Graves acknowledged his culpability and informed the police about defendant's involvement as well. Pursuant to an agreement, Graves pled guilty to aggravated manslaughter and promised to testify against defendant.

Defendant was indicted and charged with murder, N.J.S.A. 2C:11-3(a)(1), and felony murder, N.J.S.A. 2C:11-3(a)(3); N.J.S.A. 2C:2-6. At the conclusion of the trial, defendant was found guilty on both counts and later sentenced to a forty-five year prison term, with a thirty-five year period of parole ineligibility.

Defendant appealed, raising the following arguments:

I. DEFENDANT'S RIGHT TO A FAIR TRIAL WAS JEOPARDIZED WHEN THE COURT ERRONEOUSLY PER-MITTED THE JURY TO LEARN THAT DEFENDANT HAD PREVIOUSLY BEEN CHARGED WITH THE ATTEMPTED MURDER OF MOSELY.

II. THE COURT ERRED IN ITS REFUSAL TO IN-STRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF COMPLICITY IN THE COMMISSION OF AGGRAVATED MANSLAUGHTER.

III. BECAUSE THERE WAS NO EVIDENCE FROM WHICH THE JURY COULD HAVE RATIONALLY IN-FERRED THAT DEFENDANT WAS AN ACCOMPLICE TO EITHER ROBBERY OR BURGLARY, HIS CONVICTION OF FELONY MURDER MUST BE VACATED.

Defendant also filed two pro se supplemental briefs, which provide further amplification of the arguments contained in Point II of his attorney's brief.

I

Defendant contends that the trial judge erred in admitting the indictment that charged defendant with the prior attempted murder of Mosley in 1995 (hereafter "the prior indictment"). As we have observed, defendant was in jail awaiting further proceedings on the prior indictment when he had the conversations with Graves that preceded Mosley's murder in November 1997. During a N.J.R.E. 104 hearing prior to trial, the judge ruled that Graves's testimony regarding his discussions with defendant and the purported reason defendant wanted Mosley killed, were admissible as res gestae -- in the judge's words the existence of the prior indictment is "so woven into [the offenses in question] that it needs to be part of the evidence." Accordingly, the judge indicated that as a general matter he would not exclude references to the fact that defendant was charged with an offense in which Mosley was alleged to be the victim.

In appealing, defendant has only referred to two instances during the trial that he claims represented the admission of evidence that was inadmissible or, if admissible, more prejudicial than probative. In neither instance did defendant object; now he asserts only that he had made "generalized objections," which we interpret as referring to his arguments during the N.J.R.E. 104 hearing.

Before examining the two evidentiary items specifically referred to by defendant in this regard, we must start with the purpose for which the State offered evidence regarding the prior indictment and the judge's determination that, as a general matter, references to the prior indictment were not inadmissible. Obviously, the State intended to show that defendant had a motive for enlisting Graves to kill Mosley. Defendant was charged with serious offenses and Mosley was a material witness. Evidence that shows motive for the offenses charged is relevant. See, e.g., State v. Collier, 316 N.J. Super. 181, 192 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999). Once relevance is established, admissibility requires examination of the vehicle by which the information is conveyed during trial. See, e.g., State v. Driver, 38 N.J. 255, 287-88 (1962); State v. Harte, 395 N.J. Super. 162, 169-72 (Law Div. 2006). Lastly, a court may also consider whether the probative value of the evidence is outweighed by its prejudice. N.J.R.E. 403. A trial judge's consideration of these matters is not self-executing. A party must assert any deficiency by objecting on the record. Accordingly, it is not helpful to an understanding of the issues presented in this appeal to consider -- as defendant has argued -- the "generalized objections" asserted by defense counsel at the N.J.R.E. 104 hearing that took place prior to trial. Counsel was obligated to announce an objection when any offending material was offered during the trial.

In appealing the admission of evidence relating to the prior indictment, defendant first draws our attention to a portion of Puglio's direct testimony. Puglio indicated he had resided in the county jail with defendant in 1996 when defendant spoke with him about the prior indictment:

Q. And specifically what did [defendant] talk to you about with regard to the witness or witnesses with regard to those charges?

A. He just said that he was in jail for an attempted murder charge. I think in his eyes it was overinflated. He told me he got into a fight with Mr. Mosley over -- Mr. Mosely owing him about $1,500. And they winded up getting into a fight and one thing led to another and I guess Mr. Mosley must have pressed some serious charges against him. And he was in there on a parole violation[] or it might have been -- I think it was a parole violation and an attempted murder charge.

Defense counsel uttered no objection.

The concern now expressed by defendant about this evidence is its tendency to suggest that defendant had previously engaged in bad acts. To the extent Puglio's testimony may have led the jurors to such a conclusion, defense counsel was obligated to object so that the judge could have instructed the jurors about the extent to which they could utilize this evidence, i.e., to show that defendant may have had a motive to act as charged in the pending matter. Had he objected, defendant could have also sought to have the judge make a determination as to whether this evidence was more prejudicial than probative. By remaining silent, we can now only assume that, in light of other evidence regarding the prior indictment, such as that which came from Graves, defense counsel saw no harm in the admission of Puglio's testimony. In short, we cannot conclude, when considering the balance of the testimony offered against defendant, that this unnoticed claim of error was capable of producing an unjust result. R. 2:10-2.

The second item specifically referred to by defendant on appeal concerns the admission of the prior indictment itself. This was provided to the jury by way of stipulation, which the judge described in the following way:

[T]he stipulation is as follows: the following items are being submitted to the jury with a stipulation. A stipulation means that the parties, that is the State, and the defense, agree, as to the nature of the evidence, and admissibility of the evidence. The items are stipulated to be court records reflecting the status and existence of court proceedings on the prior charges involving [defendant], and Mr. Charles Mosley.

The judge then referred to the prior indictment, which was marked as an exhibit. Defendant did not object to admission of the prior indictment or the judge's description of the parties' stipulation.

As mentioned, the fact that defendant was the target of the prior indictment, which alleged his attempt to murder Mosley on an earlier occasion, was relevant as to motive for the offenses charged in this matter. To the extent defendant may have had a valid objection to the State's attempt to convey the existence of the prior indictment through admission of the indictment itself, see State v. Orecchio, 16 N.J. 125, 132 (1954), he not only failed to make that objection but he allowed the facts to be established by joining in their admission through stipulation, see N.J.R.E. 101(a)(4). Although the stipulating of facts in a criminal case remains a matter subject to the trial judge's overriding control of the proceedings, State ex rel. T.M., 166 N.J. 319, 329 (2001); State v. Laws, 50 N.J. 159, 184 (1967), modified on other grounds, 51 N.J. 494, cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968), the judge's failure to preclude sua sponte the stipulation in this case was not reversible error.

Defendant has spent a good deal of energy in arguing against the application of N.J.R.E. 404(b) and the so-called res gestae doctrine as they may relate to evidence of the prior indictment. But, as we have observed, the evidence specifically noticed in the appeal brief was properly admitted without reference to either N.J.R.E. 404(b) or res gestae.

Neither the Puglio testimony nor the stipulated prior indictment was offered to show that defendant had engaged in prior bad acts, as the judge properly held in his oral decision at the conclusion of the N.J.R.E. 104 hearing. This evidence, insofar as it revealed the existence of the prior indictment, was only offered to prove what was relevant -- that defendant had been charged and that Mosley was a material witness against him, two facts that suggested defendant's motive in participating in Mosley's murder.

And, although the judge expressly relied on the res gestae doctrine to permit evidence of the prior indictment, we do not find that questionable rationale to have any bearing upon the issues presented on appeal. That is, we discern from the trial judge's ruling that he viewed evidence relating to the prior indictment as tending to show defendant's motive; such a ruling is fully supported by N.J.R.E. 401 and does not require reliance upon the res gestae doctrine, which may or may not lurk among the interstices of our rules of evidence.

To summarize, having correctly found that the existence of the prior indictment was relevant, the only remaining questions to be considered at trial related to whether evidence of the prior indictment was conveyed in a manner permitted by the rules of evidence and, if so, whether the probity of any particular evidence was outweighed by its prejudice. Because defendant did not object when evidence of the prior indictment was offered in the two instances cited in his appeal brief, the judge was given no opportunity to determine: whether the vehicle used to convey those facts was proper; whether the evidence should have been precluded by application of N.J.R.E. 403; or whether, despite its admissibility, the prejudicial impact of evidence of the prior indictment could have been lessened by an appropriate jury instruction.

We conclude the unnoticed claims of error were not capable of producing an unjust result. R. 2:10-2.

II

Defendant argues that the trial judge erred in failing to instruct the jury on the lesser-included offense of aggravated manslaughter. He did not, however, request that charge during trial.

A defendant is entitled to a charge on all lesser-included offenses supported by the evidence. State v. Short, 131 N.J. 47, 53 (1993). N.J.S.A. 2C:1-8(e) directs that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." See State v. Sinclair, 49 N.J. 525, 540 (1967). In State v. Brent, 137 N.J. 107, 113-14 (1994), the Court commented on N.J.S.A. 2C:1-8(e), stating:

The statute has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense.

When a defendant requests a charge on a lesser-included offense, the trial judge must focus on the facts in evidence "'to ensure that there is a rational basis for a jury to reject the greater charge and convict of the lesser'" charge. Id. at 116 (quoting Cannel, New Jersey Criminal Code Annotated, comment 13 on N.J.S.A. 2C:1-8 (1993)). Where the evidence reasonably supports defendant's request for a jury charge on a lesser-included offense, a trial judge's failure to give it is reversible error. State v. Crisantos, 102 N.J. 265, 276 (1986). However, if the defendant does not request the lesser-included charge, that unrequested charge "must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)); see also State v. Garron, 177 N.J. 147, 180 (2003).

In arguing that defense counsel requested a charge on aggravated manslaughter, defendant refers us to the following statement of trial counsel in response to the judge's invitation during the charge conference:

The only thing I can think of is that our position just for the record to be clear notwithstanding case law to the contrary, notwithstanding a number of rules and regulations regarding it is that we would just ask that the indictment be submitted and that would be it.

In the alternative should the court desire a lesser included, the only two I can think of other than murder to the agg[ravated] man[slaughter] is criminal trespass and theft.

We reject the argument that defendant requested a charge of aggravated manslaughter by way of these comments. He clearly urged instructions only on the charges contained in the indictment.

As a result, to reverse we must be able to conclude that the facts "clearly indicate" the appropriateness of the charge of the lesser-included offense. State v. Savage, supra, 172 N.J. at 397. Although Graves gave testimony that suggested a change in his own state of mind as he struggled with Mosley -- and even that he acted at one point in self-defense -- there was no evidence to suggest that defendant's state of mind included anything other than an intent that Mosley be murdered. On this point, the evidence presented was overwhelming, revealing that defendant purposely solicited Graves to kill Mosley on multiple occasions and that defendant viewed the upcoming trial on the prior indictment to be a matter of "life or death" to him. There was no evidence to suggest that defendant asked Graves to go to Mosley's home to reason with him, or threaten him, or for any other reason than to bring about his death.

III

Defendant also argues that the trial judge erred in denying his motion for acquittal on the felony-murder charge and that the evidence was insufficient to support the guilty verdict on that charge. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding the sufficiency of the evidence on the felony-murder charge.

A jury verdict should only be set aside where it clearly and convincingly appears there was a miscarriage of justice. R. 2:10-1; State v. Sims, 65 N.J. 359, 373-74 (1974); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). On review, we apply essentially the same standard. Ibid. Nonetheless, our review is limited and must give due regard to the factfinder's assessment of witness credibility based on its opportunity to have heard live witness testimony and to have gained a "feel for the case." State v. Johnson, 42 N.J. 161-62 (1964).

 
In arguing the insufficiency of the felony-murder verdict, defendant argues that the burglary occurred after Graves had choked Mosley and took money out of his wallet, when he "circulated through the residence looking for guns, and claims there was no suggestion in the record that defendant engaged in that subsequent conduct. However, Graves testified that his search for guns was prompted because defendant told him there were guns in the house. Although defendant argues there is no evidence to suggest he had intended for Graves to look for and steal any weapons -- that, at best, defendant's reference to guns in their jailhouse conversations was an indication to Graves to be careful -- the jury could have interpreted defendant's instructions as suggesting to Graves that he steal any weapons found on the premises and, in light of such an interpretation, found defendant guilty of felony-murder.

Affirmed.

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

In fact, the judge gave the jurors appropriate instructions that they could consider evidence regarding the prior indictment to the extent it tended to show defendant's motive for acting as alleged in this case but that they could not use that evidence to conclude that defendant had a tendency to commit the crimes in question. Such an instruction was not only given during the judge's charge but also prior to Graves's testimony.

In Orecchio, the Court held that "[a]n indictment is evidence only of the fact that a charge has been made; it in no way establishes the truth of the charge or the presence of sufficient legal proof thereof." Ibid. In essence, an indictment "proves nothing," "carries no element of guilt" and does not in any degree "take from the accused his presumption of innocence." Ibid. (quoting State v. Ellenstein, 121 N.J.L. 304, 312 (Sup. Ct. 1938)).

We are mindful that the members of our Supreme Court are not in agreement about the viability of the res gestae doctrine. Justice Albin (joined by Justice Long) has recently urged that the time has come for the abandonment of "the discredited doctrine of res gestae as an independent basis for the admission of evidence." State v. Barden, 195 N.J. 375, 396 (2008) (Albin, J., concurring); State v. Kemp, 195 N.J. 136, 157-63 (2008) (Albin, J., dissenting).

Puglio's testimony as to what defendant told him about the prior indictment was a proper conveyance for that information, N.J.R.E. 803(b)(1), as was the prior indictment itself, N.J.R.E. 902(a).

(continued)

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A-5418-06T4

October 23, 2009