STATE OF NEW JERSEY v. SELLERS INGRAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SELLERS INGRAM, a/k/a

SELLERS INGRAM, III, and

INGRAM SELLERS,

Defendant-Appellant.

__________________________

December 5, 2013

 

 

Before Judges Simonelli, Fasciale and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-03-0691.

 

Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the briefs).

 

Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Anderson, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury found defendant Sellers Ingram guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts two and five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count seven). In a bifurcated proceeding, the trial judge found defendant guilty of two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (counts four and six). The judge denied defendant's post-trial motions for a judgment of acquittal or a new trial, and imposed an aggregate fifty-eight year term of imprisonment with a forty-seven and one-half year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.

On appeal, defendant's assigned counsel raises the following arguments:

POINT I

ALLOWING THE VIDEO RECORDING OF [DEFENDANT'S] POST-ARREST INTERVIEW INTO THE JURY ROOM DURING DELIBERATIONS WAS STRUCTURAL ERROR BECAUSE IT DEPRIVED HIM OF HIS RIGHT TO BE PRESENT DURING A CRITICAL STAGE OF TRIAL. (Not raised below).

 

A. Allowing [Defendant's] Videotaped Statement Into The Jury Room Deprived Him Of His Right To Be Present At A Critical Stage Of Trial.

 

B. Allowing [Defendant's] Videotaped Statement Into The Jury Room Was Also Prejudicial Error Which Deprived Him Of A Fair Trial.

 

POINT II

 

THE STATE'S USE OF AUTOPSY PHOTOS AND BLOODY CLOTHING WAS UNDULY PREJUDICIAL AND DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL.

 

POINT III

 

THE TRIAL COURT'S SENTENCE VIOLATED DOUBLE JEOPARDY PRINCIPLES AND IMPOSED CONSECUTIVE PRISON TERMS BASED ON A FLAWED YARBOUGH[1] ANALYSIS.

A. The Trial Court's Failure To Merge The Weapons-Related Offenses At Sentencing Violated Principles Of Double Jeopardy.

 

B. The Trial Court's Yarbough Analysis Was Flawed And Must Be Reconsidered In Light Of The Failure To Properly Merge Counts Of Conviction.

 

Defendant raises the following argument in his supplemental pro se brief:

The [Trial] Court Committed Plain Error For Not Vacating Defendant's Conviction Of Aggravated Manslaughter When The State Failed To Prove Each Essential Element Beyond A Reasonable Doubt, Thereby Denying Defendant Of Due Process. [U.S. Const., Amend. VI, XIV; N.J. Const. (1947), Art. I, 10.]

 

We affirm defendant's conviction and sentence, but remand to amend the judgment of conviction (JOC).

We derive the following facts from the record and our review of defendant's videotaped interview. On the evening of December 7, 2009, defendant and several other people, including the victim, Jamal Smith, attended a party at an apartment in Pleasantville. Everyone was talking loudly and drinking or smoking marijuana. During the party, Smith and another guest engaged in a freestyle rap competition that became increasingly confrontational and led to loud arguing. The partygoers spilled into the "breezeway" outside the apartment, where defendant and Smith began arguing. As their argument escalated, Smith challenged defendant to a fight and antagonized defendant by threatening him verbally and making derogatory references to defendant's age.2 Defendant responded by shooting and killing Smith. After the shooting, defendant fled the scene, leaving behind his hooded sweatshirt and cell phone. The police found a nine millimeter shell casing at the scene, and the medical examiner later recovered a .38 caliber bullet from Smith's body.

Several eyewitnesses placed defendant at the scene, confirmed he had brandished a gun and argued with Smith, gave a description of him, and identified him as the shooter. When the police arrested defendant on December 10, 2009, he had a nine millimeter Glock 23 handgun in his possession, which he claimed he purchased two days after the shooting. The gun's owner testified at trial that he did not know defendant, did not give defendant permission to use or possess his gun, and the gun was stolen from his apartment on November 21, 2009. The State's expert opined at trial that the shell casing found at the scene was ejected from that gun, and although the forensic testing was inconclusive, the gun could have fired the bullet found in Smith's body.

During an approximately three-hour video-recorded interview,3 which was played to the jury, defendant admitted he was at the party and argued with Smith, but adamantly denied he shot Smith. He insisted that he fled the scene before the shooting after he saw an individual approaching with a shotgun. Despite the various interrogation tactics the interviewing detectives used to extract a confession, defendant steadfastly maintained his innocence throughout the interview and made no inculpatory statements.

Defense counsel consented to playing defendant's video-recorded interview to the jury and to admit the recording into evidence. Defense counsel mentioned the video-recording during his summation, and did not object when the prosecutor played certain portions during his summation. Defense counsel also consented to permitting the jury to have unfettered access to the video-recording in the jury room during deliberations.

I.

Defendant contends for the first time in Point I of assigned counsel's merits brief that permitting the jury to have unfettered access to the video-recorded interview in the jury room during deliberations constituted either structural error that deprived defendant of his right to be present at a crucial stage of trial, or prejudicial error that deprived defendant of a fair trial. We disagree.

We review this argument under the plain error standard of review. R. 2:10-2; State v. Macon, 57 N.J. 325, 336-37 (1971). We will reverse on the basis of an unchallenged error only if it was "'clearly capable of producing an unjust result.'" Macon, supra, 57 N.J. at 337 (quoting R. 2:10-2). To reverse for plain error, we must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Id. at 336.

Our Supreme Court recently revisited the issue of whether a jury may have unfettered access to audio- or video-recorded statements that were played at trial and admitted into evidence. See State v. A.R., 213 N.J. 542, 562 (2013). In A.R., the defendant was charged with aggravated sexual assault of his nine-year-old great-niece. Id. at 546. The victim and defendant gave video-recorded statements. Id. at 548-49. In his statement, defendant admitted that during a "moment of weakness," he placed his mouth on the victim's vagina, grabbed "her booty," and asked for forgiveness. Id. at 562. With defense counsel's consent, the jury was permitted unfettered access to defendant's and the victim's video-recorded statements during deliberations. Id. at 550.

The Court expressly disapproved of the unfettered access to audio- or video-recorded statements admitted in evidence in the jury room during deliberations. Id. at 558. Nevertheless, the Court found no structural error in permitting such access because "[t]he process, although flawed, simply did not implicate either defendant's right to confront evidence or witnesses against him or to assure a fair trial process." Id. at 558-59. The Court concluded that

although we do not approve of the unfettered access to the video-recorded statements of the victim and defendant in the jury room during deliberations, we conclude that the procedure utilized cannot be said to undermine the trial process. The process, although flawed, simply did not implicate either defendant's right to confront evidence or witnesses against him or to assure a fair trial process.

 

. . . .

Stated differently, [defendant's] presence did not have a reasonably substantial relation to his opportunity to defend the charges against him. When the case reached the stage that the jury commenced its deliberations, defendant's ability to influence the course of events was complete and his fate was in the hands of the jury and in its assessment of the quality of the evidence submitted in support of and in defense of the charged offenses.

 

[Id. at 558-59.]

Addressing procedural error, the Court reiterated the trial court's need to follow the procedures espoused in State v. Burr, 195 N.J. 119 (2008), and State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994) when confronted with a jury's request to replay during deliberations an audio- or video-recording received in evidence at trial. Id. at 560. The Court warned that if the trial court determines a replay is proper, "under no circumstances shall the jury have unfettered access to audio- or video-recorded statements in the jury room during deliberations. Replay in open court permits the required record of the replay to be made." Id. at 560-61 (citing State v. Wilson, 165 N.J. 657, 662 (2000)).

Although the Court determined the procedures the trial judge utilized did not comport with Burr and Michaels, it nevertheless determined that "[t]he trial error was plainly invited and [did] not warrant reversal of defendant's conviction." Id. at 561. The Court found that defense counsel: considered defendant's video-recorded statement as an element of her defense strategy; actively encouraged the jury in summation to thoroughly review the statement during deliberations; urged the trial judge to submit the video recordings to the jury; and consented to the jury's unfettered access to the recordings in the jury room and found a rationale to support such access. Id. at 561-63.

In applying the invited-error doctrine, the Court acknowledged the strength of the State's evidence in support of defendant's conviction and the nature of the error. Id. at 563. The Court concluded that the evidence of defendant's guilt and the nature of the error invited by defendant required reinstatement of his conviction. Id. at 563-64.

We find there was no structural error here. Unlike in A.R., defendant made no inculpatory statements during his interview, and the jury's unfettered access to it did not implicate either his right to confront evidence or witnesses against him or to assure a fair trial process.

We also find that the procedures utilized in this case did not comport with Burr and Michaels. Nevertheless, we determine that the trial error was plainly invited and does not warrant reversal of defendant's conviction. Defense counsel considered defendant's video-recorded statement as a crucial element of the defense strategy that defendant did not shoot Smith and had left the scene before the shooting occurred. Defendant never wavered from his version of events during his lengthy video-taped interview, and always maintained his innocence. In addition, defense counsel referred to defendant's video-recorded statement in summation, emphasizing that defendant consistently maintained his innocence despite the tactics the interviewing detectives used to extract a confession. Defense counsel also consented to the jury's unfettered access to the video recording in the jury room during deliberation. We conclude that defendant invited the error, and the overwhelming evidence of his guilt, as well as the nature of the invited error, require us to affirm his convictions.

II.

The medical examiner testified that the bullet that killed Smith entered his body near his right shoulder, followed a diagonal trajectory through his chest cavity, right lung, heart, diaphragm, stomach, edge of his liver, spleen, left kidney, and came to rest near his left hip. The medical examiner ruled Smith's death a homicide and concluded that cause of death was the gunshot wound to Smith's shoulder and the internal injuries caused by the bullet's trajectory. Defendant argues for the first time in Point II of assigned counsel's merits brief that because the cause of Smith's death was not disputed, the admission of certain autopsy photographs and articles of Smith's bloody clothing was unduly prejudicial and deprived defendant of a fair trial. This contention lacks merit.

"The 'admissibility of photographs of the victim of a crime rests in the discretion of the trial court, and the exercise of its discretion will not be reversed in the absence of a palpable abuse thereof.'" State v. Johnson, 120 N.J. 263, 297 (1990) (quoting State v. Thompson, 59 N.J. 396, 420 (1971)). We will not overturn a judge's evidentiary ruling absent a finding of "'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), or where the "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 2002)).

Because the clothing remained in a sealed bag and the jury never saw it, there was no error. As for the photographs, defense counsel agreed to the ones the prosecutor selected to show to the jury and did not object to their admission into evidence. Trial errors that defense counsel acquiesced in or consented to are ordinarily not a basis for reversal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). Such an error warrants reversal of a conviction only if it "demonstrably impair[ed] a defendant's ability to maintain a defense on the merits." Ibid. There was no such impairment here. Defense counsel had the opportunity to review the photographs before their presentation to the jury, and to cross-examine the witnesses who testified about them.

In any event, the photographs corroborated the medical examiner's testimony and conclusions that the gunshot wound to Smith's shoulder and the internal injuries caused by the bullet's trajectory caused Smith's death. This evidence supported the inference that defendant either purposely or knowingly caused Smith's death or serious bodily injury resulting in his death, and was necessary to prove first-degree murder. N.J.S.A. 2C:11-3a(1) or (2). Accordingly, admission of the autopsy photographs was proper.

III.

Defendant challenges his sentence in Point III of assigned counsel's merits brief. At sentencing, the judge merged count three with count one and sentenced defendant on count one to a discretionary extended term of fifty years imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to NERA. On the remaining counts, the judge sentenced defendant as follows:

Count Two (second-degree unlawful possession of a weapon): five years concurrent to count four;

 

Count Four (second-degree certain persons not to have weapons): five years subject to a five-year period of parole ineligibility consecutive to the count one and concurrent to count six;

Count Five (second-degree unlawful possession of a weapon): five years concurrent to count six;

 

Count Six (second-degree certain persons not to have weapons): five years subject to a five-year period of parole ineligibility concurrent to count four; and

Count Seven (third-degree receiving stolen property): three years consecutive to counts one and four.

 

Defendant contends that the judge erred in failing to merge the weapons-related offenses, and this failure to merge affected the judge's Yarbough analysis, requiring reconsideration of the consecutive sentences imposed on counts four (second-degree certain persons not to have weapons) and seven (third-degree receiving stolen property). We disagree.

Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

We discern no abuse of discretion in defendant's sentence. Defendant does not dispute that he met the requirements for an extended-term sentence on count one, nor does he challenge the judge's findings and application of aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3),; factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); and factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9), and no mitigating factors. The judge based his findings on defendant's criminal history of sixteen arrests and eight indictable convictions, including two convictions for third-degree unlawful possession of a weapon, a conviction for second-degree certain persons not to have weapons, and several convictions for third-degree drug offenses.

However, as the State concedes, the judge should have merged count two with count five and count four with count six. The State also notes, and we agree, that the judge should have imposed the sentence on count six, not count four, consecutive to count one. Thus, we remand to amend the JOC to correct these errors.

In our view, the mergers do not affect the judge's Yarbough analysis and imposition of consecutive sentences on counts six and seven. The trial court has the authority to impose consecutive or concurrent sentences as it determines is appropriate. N.J.S.A. 2C:44-5a. To assist in this determination, our Supreme Court has identified several factors for the court's consideration. Yarbough, supra, 100 N.J. at 643-44. Among these factors are that "there can be no free crimes" and "there should be no double counting of aggravating factors." Ibid. The court should consider the factual content of the crimes, including whether or not: (1) the crimes and their objectives were predominantly independent of each other; (2) the crimes involved separate acts of violence or threats of violence; (3) 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; (4) any of the crimes involved multiple victims; and (5) the convictions for which the sentences were imposed were numerous. Ibid. These five factors are to be applied qualitatively, rather than quantitatively. State v. Carey, 168 N.J. 413, 427-28 (2001).

A consecutive sentence can be imposed, even if a majority of the Yarbough factors support concurrent sentences. The fairness of the overall sentence should be considered in reviewing the imposition of consecutive sentences. State v. Sutton, 132 N.J. 471, 485 (1993). Additionally, the Court has recognized that factor one tilts in favor of the imposition of consecutive sentences, Carey, supra, 168 N.J. at 423, and factor four "'is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms.'" State v. Molina, 168 N.J. 436, 442 (2001) (quoting Carey, supra, 168 N.J. at 429-30).

Here, the Yarbough factors weigh heavily in favor of the consecutive sentences imposed on counts six and seven. The certain persons not to have weapons offense in count six was clearly a distinct offense from Smith's shooting. The offense was committed on separate dates and in separate areas, and it had distinct elements. Imposing a concurrent sentence on defendant for this offense would have given him a "free crime" and would have frustrated the legislature's intent to deter persons with criminal histories from possessing weapons.

The receiving stolen property offense was also a distinct offense that occurred before the aggravated manslaughter, since it occurred at a different location and against a different victim, the gun's owner. Accordingly, the imposition of consecutive sentences on counts six and seven was proper.

IV.

Defendant's contention in Point I of his supplemental pro se brief, that the judge should have granted his motion for acquittal on the aggravated manslaughter conviction pursuant to Rule 3:18-2, lacks sufficient merit to warrant discussion in a written opinion beyond these brief comments. R. 2:11-3(e)(2).

The standard for deciding a Rule 3:18-2 motion for acquittal after the jury is discharged is the same as that used to decide a motion for acquittal made at the end of the State's case. See State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996). We must determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Reyes, 50 N.J. 454, 459 (1967).]

 

Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J.473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

Having considered the trial proofs in their entirety, we are satisfied that defendant committed aggravated manslaughter by recklessly causing Smith's death "under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a(1). Multiple eyewitnesses saw defendant shoot Smith, and the shell casing found at the scene was connected to the gun found on defendant. In sum, the verdict was not against the weight of the evidence.

Defendant's conviction and sentence are affirmed, and the matter is remanded to amend the JOC to merge count two with count five and count four with count six, and to reflect that the sentence imposed on count six, not count four, is consecutive to the sentence imposed on count one.

1 State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

2 Defendant was thirty-eight years old and Smith was nineteen years old.

3 Defendant's interview was actually five hours long. The jury saw a redacted version.