STATE OF NEW JERSEY v. TIQUAN WHITEHURST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5035-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

TIQUAN WHITEHURST,

Defendant-Appellant/

Cross-Respondent.

________________________________________________

January 6, 2012

 

 

Submitted October 12, 2011 - Decided

 

Before Judges Messano and Kennedy.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-1973.

 

Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent/cross-appellant (Lucille M. Rosano, Special Deputy Attorney General/ActingAssistant Prosecutor, of counsel and on the brief).

 

Appellant/cross-respondent filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Tiquan Whitehurst was convicted of the first-degree purposeful or knowing murders of Joseph Cox and Charles Jackson, N.J.S.A. 2C:11-3(a)(1) and (2) (Counts One and Two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (Count Three); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Four). Prior to sentencing, the State moved for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:44-3(d) (the Graves Act).

For the murders, the judge sentenced defendant to two consecutive life terms, each subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On Count Three, the judge sentenced defendant to a term of five years, concurrent with the sentences imposed on Counts One and Two; he merged the conviction on Count Four with Counts One and Two.

Although the State argued for the imposition of extended terms and mandatory minimum terms pursuant to the Graves Act, the judge did not address the State's motion and the sentences imposed were not subject to the Graves Act.

On appeal, defendant raises the following arguments:

POINT I

 

THE TRIAL COURT'S ADMISSION OF TESTIMONIAL HEARSAY STATEMENTS, IN THE FORM OF DYING DECLARATIONS IN RESPONSE TO POLICE QUESTIONS, VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not raised below)

 

POINT II

 

defendant's sentence is manifestly excessive.

 

In a pro se supplemental brief, defendant contends:

 

POINT I

 

DEFENDANT WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR 10 OF THE NEW JERSEY CONSTITUTION. (Partially raised below)

 

POINT II

 

THE PROSECUTOR'S COMMENTS DURING HER OPENING AND CLOSING SUMMATION WERE IMPROPER AND DEPRIVED DEFENDANT OF HIS RIGHT'S [SIC] TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART I, PARS. 1, 9, AND 10. (Not raised below)

 

The State raises the following issue on cross-appeal:

 

IN ADDITION TO THE NERA SENTENCES IMPOSED ON COUNTS ONE AND TWO, THE TRIAL COURT WAS REQUIRED TO IMPOSE MANDATORY GRAVES ACT SENTENCES ON THOSE COUNTS AS WELL BECAUSE DEFENDANT IS EXTENDED TERM ELIGIBLE AS A SECOND OFFENDER WITH A FIREARM.

 

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction and sentence. We also grant the State's cross-appeal and remand the matter to the trial judge for re-sentencing under the Graves Act.

 

I.

The testimony at trial revealed that in the late evening hours of December 2, 2006, EMTs, fire fighters and police officers were dispatched to the scene of a motor vehicle accident at South 16th Street in Newark. They found the driver, Jackson, with a gun shot wound to the chest; the front-seat passenger, Cox, with a gun shot wound to the head; and a passenger in the backseat, later identified as defendant, unconscious with a gun in, or near, his hand.

Prior to trial, the judge ruled that Jackson's statements to police and emergency personnel at the scene were admissible pursuant to the dying declaration exception to the hearsay rule. See N.J.R.E. 804(b)(2); State v. Taylor, 350 N.J. Super. 20, 37 (App. Div. 2002). Defense counsel did not object and only requested time to interview one of the proposed witnesses.

At trial, Fire Fighter Shannon McTighe testified that he and other fire fighters from a nearby firehouse were the first to arrive at the scene. McTighe saw "a vehicle . . . that had hit a tree. . . . The driver door was open and [a] gentleman was in a kneeling, praying-type position, . . . hanging over [his] seatbelt . . . struggling to release that, but not really having the energy to . . . release it." When EMTs arrived, they alerted McTighe and police officers at the scene to the presence of a gun in the backseat. McTighe overheard Jackson tell EMTs and the police, "[T]his guy shot me, I've been shot."

Michael Palmieri, an EMT, arrived at the scene and found Jackson talking to someone from the fire department. Palmieri observed a gun in defendant's hand. He pointed the gun out to police officer, Gregory Hamilton, who retrieved it.

Hamilton and police officer Lisa Sanchez arrived at the scene after the fire fighters and EMTs. Hamilton saw the front-seat passenger, Cox, had been shot in the head and was dead. He also saw defendant in the backseat, unconscious. Jackson was trying to unbuckle his seat belt, and said to Hamilton, "Officer, I'm dying, I want to get out the seat belt." Hamilton tried to calm Jackson, who repeated that he felt like he was dying and wanted to get out of his seat belt. When Hamilton asked what happened, Jackson responded, "[T]he guy in the back seat shot us." Jackson told Sanchez, "I'm dying. Ma'am, I'm dying."

Dennis O'Keefe, a paramedic supervisor, examined Jackson and observed a gunshot wound through his back and chest. Cox had severe head trauma from a fatal gunshot wound. While tending to defendant in the backseat, O'Keefe heard Jackson say, "[T]he man -- the guy in the back seat shot me."

Lakisha Smith testified that she was in a relationship with Cox, who worked with Jackson and was his best friend. Cox owned the car, but frequently let Jackson drive it. Cox knew defendant as "Freddy."

Defendant's phone records revealed approximately 22 calls from defendant to Cox's cell phone that day. The first call was placed at 11:50 a.m., and the last at 11:38 p.m., approximately 15 minutes before the accident.

Dr. Thomas Blumenfeld from the Regional Medical Examiner's office in Newark testified that both victims had been shot from behind. Sergeant Pablo Maldonado, a ballistics expert with the Newark Police Department, testified that the gun found with defendant in the backseat fired the bullets which killed the two victims.

Defendant did not testify or present any witnesses at trial.

II.

Defendant argues that the introduction of Jackson's dying declarations violated his right to confrontation provided by the Sixth Amendment of the United State Constitution. Whether an error was objected to below or first claimed upon appeal, a violation of a defendant's "federal constitutional right is a fatal error, mandating a new trial," unless we are "able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967); accord State v. Cabbell, 207 N.J. 311, 337-338 (2011). We will disregard "[a]ny error or omission [by the trial court] . . . unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. "The same 'harmless beyond a reasonable doubt' standard applies to the determination under our State Constitution." Cabbell, supra, 207 N.J. at 338.

"[T]he Confrontation Clause proscribes 'the use of out-of-court testimonial hearsay, untested by cross-examination, as a substitute for in-court testimony.'" State v. Basil, 202 N.J. 570, 591 (2010) (quoting In re J.A., 195 N.J. 324, 342 (2008)). Since Basil was decided, the Supreme Court decided Michigan v. Bryant, ___ U.S. ___, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), a case so factually similar to this case as to dispose of defendant's argument.

In Bryant, supra, 131 S. Ct. at 1150, 179 L. Ed. at 101, the defendant challenged the admission of the murder victim's statements at trial claiming a violation of the Confrontation Clause.1 On the night of the crime, police found the victim, who had "a gunshot wound to his abdomen, appeared to be in great pain, and spoke with difficulty." Ibid. The officers asked the victim "what had happened, who had shot him, and where the shooting had occurred." Ibid. The victim died shortly after telling the police that the defendant had shot him and where the shooting occurred. Ibid.

The Court held that "the ultimate inquiry is whether the 'primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.'" Id. at 1165 179 L. Ed. at 117 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006)). The questions asked of the victim -- "what had happened, who had shot him, and where the shooting occurred" -- "were the exact type of questions necessary to allow the police to 'assess the situation, the threat to their own safety, and possible danger to the potential victim' and to the public." Id. at 1166, 179 L. Ed. at 118 (quoting Davis, supra, 547 U.S. at 832, 126 S. Ct. at 2279, 165 L. Ed. 2d at 243). "When, as in Davis, the primary purpose of an interrogation is to respond to an 'ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause." Id. at 1155, 179 L. Ed. at 107.

Defendant contends that the situation was different from that posed by Bryant because he was unconscious in the backseat of the car and the police did not face an ongoing emergency regarding the location or threat of a gunman at large. Of course, this argument overlooks the fact that the police knew defendant was the gunman only as a result of Jackson's responses to their questions. We believe it is clear that admission of Jackson's dying declarations did not violate the Confrontation Clause.

III.

We consider the issues raised in defendant's pro se brief before moving on to the sentencing arguments.

Defendant contends he was denied a fair trial as a result of a juror's improper conduct and the judge's reaction thereto. The issue arose in the following context.

During the course of trial, juror #12, E.M., advised a sheriff's officer that she might be related to the defendant, her ex-husband's sister's nephew. She further indicated that nonetheless she could be fair and impartial. The judge discussed the issue with the prosecutors and defense counsel. The State believed E.M. should be excused, but the judge conducted a conference with the juror at sidebar with the attorneys present. Unfortunately, the discussion could not be transcribed because it was inaudible. E.M. was permitted to remain on the jury.

Shortly thereafter, two other jurors saw E.M. hug an observer in the courtroom. When they questioned her, E.M. explained that the observer had been her hairdresser 15 years ago, and that she did not know the hairdresser's relationship with the parties in the case. One of the jurors notified the judge who interviewed E.M. and the other two jurors with counsel present. All were consistent in their recounting of the incident. The judge concluded that E.M.'s interactions with the courtroom observer were both inadvertent and innocent. Nonetheless, without objection, he excused E.M. as a juror. Neither side objected to the other two jurors remaining.

When a court officer retrieved E.M.'s purse from the jury room, another juror told the officer to "tell [E.M.] not to worry. I'll bail her out." The judge interviewed that juror, who stated that her comments were meant as a joke. Without objection, the judge took no further action.

Defendant now contends that although he did not formally object at trial, multiple acts of juror misconduct were "grievously prejudicial" so as to taint the entire panel. We disagree.

The Court has said that "[a]n appropriate voir dire of a juror allegedly in possession of extraneous information mid-trial should inquire into the specific nature of the extraneous information, and whether the juror intentionally or inadvertently has imparted any of that information to other jurors." State v. R.D., 169 N.J 551, 560 (2001). Depending on the juror's answers to searching questions by the court, the court must then determine whether it is necessary to individually voir dire other jurors to ensure the impartiality of the jury. Ibid. There is no per se rule that the remaining jurors be interrogated, and the judge's decision in that regard is reviewed under an abuse of discretion standard. Id. at 560-61; and see State v. Wakefield, 190 N.J. 397, 496 (2007) ("Ultimately, we observe that voir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and its exercise of discretion will ordinarily not be disturbed on appeal.") (internal quotation and alterations omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

The judge appropriately conducted a thorough voir dire of the several jurors involved. Exercising an abundance of caution, he excused E.M. without objection. There is nothing in the record to indicate that her actions, or the joking comment of another juror, tainted the jury's fair and impartial consideration of the evidence.

Defendant also contends that the prosecutor's comments in opening statement and summation deprived him of a fair trial. Specifically, defendant claims the prosecutor unfairly vouched for the credibility of the victim's dying declarations. We disagree.

The prosecutor's comments in opening set forth the State's contentions. Specifically, the prosecutor told the jury that in an act of "sheer human instinct and self-preservation," Jackson purposely drove the car into a tree after seeing defendant shoot Cox. The prosecutor also told the jury that Jackson spoke to the police "out of some basic automatic human need to say what happened." The comments did not "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (quotations omitted). The argument lacks sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2).

 

IV.

We turn to defendant's sentencing argument and the State's cross-appeal. Defendant contends the sentences were "manifestly excessive" and the trial judge failed to explain his reasons for their imposition. He specifically argues the murders of Cox and Jackson were not "independent" acts, but were clearly "interrelated" and must be viewed as "a single period of aberrant behavior."

The judge found aggravating factors three, six and nine. See N.J.S.A. 2C:44-1(a)(3) (risk of recidivism); (6) (seriousness of the crime and defendant's record); and (9) (need to deter). He found no mitigating factors.

Citing State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the judge noted that "an offender who has engaged in a pattern of behavior constituting a series of separate offenses or committed . . . multiple offenses in related episodes . . . is open to consecutive sentences." On the murder convictions, he imposed two consecutive life sentences, each with an 85% period of parole ineligibility pursuant to NERA.

In Yarbough, supra, 100 N.J. at 643-44, the Court set forth the considerations facing a sentencing judge deciding whether to impose consecutive sentences:

(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.

 
The Yarbough factors essentially focus upon "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." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)).

As the Court has noted, "adherence to the Code's sentencing scheme triggers limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009). "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989).

Courts have often affirmed the imposition of consecutive sentences for crimes involving multiple victims from a single criminal event, or two events occurring contemporaneously. See e.g., Carey, supra, 168 N.J. at 431 (affirming consecutive sentences of drunk driver who caused a single accident resulting in multiple victims); State v. Kelly, 406 N.J. Super. 332, 353 (App. Div. 2009), aff'd, 201 N.J. 471 (2010) (affirming consecutive sentences for homicides where both victims were shot contemporaneously). Here, the judge carefully considered the Yarbough factors and correctly concluded that consecutive sentences were warranted. We affirm defendant's sentence.

We turn to the State's cross-appeal. Prior to sentencing, the State moved for imposition of mandatory extended-term sentences pursuant to the Graves Act on the two murder convictions. Although the prosecutor orally argued that position at sentencing, the judge did not address the State's motion and did not impose mandatory Graves Act sentences. The State contends that defendant's two consecutive life sentences, with an aggregate mandatory minimum of 127.5 years under NERA, should have included the mandatory minimum required under the Graves Act. We agree.

N.J.S.A. 2C:43-6(c) requires that for certain enumerated crimes committed with a firearm, including murder, the judge must impose a period of parole ineligibility "at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, or 18 months in the case of a fourth degree crime." The imposition of an extended term is mandatory whenever a defendant is at least 18 years of age, has been previously convicted of violating N.J.S.A. 2C:39-4(a), used or possessed a firearm in the course of committing or attempting to commit the present offense, and the present offense is one of certain enumerated crimes, including murder. N.J.S.A. 2C:44-3(d). "Under the repeat-offender provision, the court is required to sentence a person convicted of a second Graves Act offense to both an extended term and a parole disqualifier." State v. Franklin, 184 N.J. 516, 529 (2005).

We need not consider the practical implications of the judge's omission regarding the imposition of a Graves Act sentence since defendant concedes in his brief that an appropriate sentence may be addressed upon remand and re-sentencing.

D

efendant's conviction and sentence are affirmed. The matter is remanded solely for re-sentencing in accordance with the Graves Act. We do not retain jurisdiction.

1 In Bryant, supra, 131 S. Ct. at 1151, 179 L. Ed. at 102, the State argued that the statements of the victim were admissible as "excited utterances," not dying declarations. The distinction is insignificant, since in this case defendant has never argued that Jackson's statements were inadmissible under N.J.R.E. 804(b)(2) as dying declarations.