STATE OF NEW JERSEY v. JOEL S. HESTER

NOT FOR PUBLICATION WITHOUT THE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.

JOEL S. HESTER, a/k/a

JOEWELL A. HESTER,

Defendant-Appellant.

___________________________________

October 3, 2014

Submitted September 10, 2014 Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 09-10-2662, 10-01-0039 and 11-04-0652.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Joel Hester appeals from his murder conviction and sentence of forty years imprisonment. We affirm.

Defendant was indicted and tried on three charges: (count one) murder, N.J.S.A. 2C:11-3(a)(1) and (2); (count two) second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and (count three) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).

At defendant's trial, Newark Police Officer Melissa Arroyo testified that on June 14, 2010, she received a report that someone had been shot on Astor Street at approximately 10:30 p.m. Upon arriving at the scene, Officer Arroyo found a man lying face up in the street and critically injured by a gunshot to the head. Arroyo did not see any other persons in the immediate vicinity. She secured the scene and called for an ambulance. Despite the efforts of the police and emergency medical personnel, the victim, identified as Oscar Ayo, Jr., did not survive.

Detective Antonio Rua testified that he followed up on information that a man named Robinson had called 911 and reported the shooting. Robinson told Detective Rua he had seen the shooting but hesitated to make an identification and claimed he did not see the shooter. Robinson also told Rua he would come to the police station and give a statement at a later date. When Robinson failed to follow through on his promise, Rua investigated his whereabouts and discovered he had been arrested and was in a halfway house.

At the halfway house, Robinson told Detectives Rua and Jose Ramirez that he had seen defendant, whom Robinson knew as "Bandana," arguing with Ayo on the night of the shooting. Defendant walked away but returned and continued the argument with Ayo. Defendant then shot Ayo in the face.

In testimony before a grand jury several months later, Robinson repeated this account and identified defendant as the shooter. He did the same in a meeting with the assistant prosecutor and a law enforcement officer a few days before defendant's trial. Robinson did not express uncertainty about his identification but said he did not want to testify at the trial.

Detectives also interviewed two other witnesses about the incident, and both knew defendant and identified him as the shooter. According to the first witness's testimony at defendant's trial, defendant and a young man were having an argument. Defendant left in a burgundy van and returned a few minutes later. Defendant then walked up to the man and shot him in the face. The witness had "no doubt" that defendant was the shooter. The second witness similarly testified that defendant walked up to a young man, pulled out a gun, and shot him in the face.

Robinson, however, recanted his identification of defendant at defendant's trial. He repeated his prior account of the shooting but did not identify defendant as the shooter. He testified he was "not even really sure" defendant was present on the night of the shooting. Robinson said he changed his version of the incident because he had never really been sure. He also claimed he told the detectives he was unsure at the time of his interview at the halfway house, but this claim was contradicted by the recording of the interview.

In his testimony, Robinson admitted defendant's brother had assaulted him before the trial and told him to retract his identification or he would be killed. He also said he told the police about the assault two days later, but denied the brother's threat was the reason for the change in his testimony. At Robinson's request, all charges against defendant's brother in connection with the assault and threats were dropped.

In the defense case, defendant and two of his brothers testified about his whereabouts and activities on the night of the shooting. Through their collective testimony, defendant denied he shot Ayo and claimed he had an alibi. The defense alleged that defendant was with his older brother drinking at an intersection a few blocks away from 9:00 to 10:45 p.m. that night. While at that location two women talked with defendant and his brother, and these women got a traffic ticket just before 9:30 p.m. A surveillance camera recorded defendant, his brother, and two women on the night of the shooting, but defendant and his brother were not visible on the recording after 9:30 p.m. Nevertheless, defendant claimed they stayed at the same location until 10:45, that is, after the time of the shooting. According to the defense case, defendant and his brother went to a bar before eventually arriving at the home of defendant's mother at about 11:30 p.m. to have a meal.

The jury found defendant guilty on all three counts. At defendant's sentencing on December 17, 2012, the court merged count three with count one and sentenced defendant to forty years in prison with thirty years of parole ineligibility. It also sentenced defendant to ten years in prison with five years of parole ineligibility on the weapons offense charge in count two.

On appeal, defendant contends

POINT I

THE COURT ERRED IN ADMITTING THE PRIOR STATEMENTS OF ROBINSON INTO EVIDENCE AS THE STATE FAILED TO SATISFY THE STANDARDS OF STATE V. GROSS, 216 N.J. Super. 98 (App. Div. 1987), aff'd, 121 N.J. 1 (1990). U.S. CONST., AMENDS VI, XIV; N.J. CONST., ART. 1, PAR. 10. (Partially Raised Below).

POINT II

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Defendant has also filed a pro-se supplemental brief raising the following additional issues

The Combined Effect of the Trial Court's Failure to Give Appropriate Instructions and Comments of the Prosecutor Worked to Deprive Defendant of a Fair Trial. (Not Raised Below).

Defendant Was Deprived of His Constitutional Right to Present Evidence of Third-Party Guilt. (Not Raised Below).

Defendant Was Deprived of the Effective Assistance of Counsel.

We find no merit in any of these arguments.

Defendant contends the trial court erred in admitting the prior statements of Robinson because they were inadmissible hearsay. We disagree.

The prosecution offered Robinson's prior grand jury testimony and his recorded statement in evidence under Rule of Evidence 803, which provides

The following statements are not excluded by the hearsay rule

(a) Prior statements of witnesses. --A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement

(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability or (B) was given under oath subject to the penalty of perjury at a trial or other judicial, quasi-judicial, legislative, administrative or grand jury proceeding, or in a deposition . . . .

Here, the court admitted Robinson's out-of-court statements under this rule of evidence after he testified inconsistently at trial with his prior identification of defendant as the shooter.

In a hearing outside the presence of the jury, Judge Sherry Hutchins-Henderson heard testimony from Robinson about the circumstances of his giving the recorded statement to the detectives and his testifying under oath before the grand jury. Robinson testified he was not threatened or influenced to identify defendant as the shooter and asserted he told the truth as he believed it at the time. He claimed he was unsure of his identification of defendant and indicated so to the detectives and in his grand jury testimony.

Judge Hutchins-Henderson rejected defense counsel's argument that there was no inconsistency between Robinson's trial testimony and his prior statements. She ruled that his grand jury testimony and his other prior statement were reliable and admissible in evidence under N.J.R.E. 803(a)(1).

If the party calling a witness seeks to admit prior inconsistent testimony or statements for the truth of the matter asserted, the court must conduct a hearing and determine whether the prior testimony or statements are admissible under N.J.R.E. 803(a)(1). State v. Gross, 216 N.J. Super. 98, 110 (App. Div. 1987), aff d, 121 N.J. 1 (1990); accord State v. Brown, 138 N.J. 481, 539 (1994). In determining whether a prior recorded or written statement was given "in circumstances establishing its reliability," N.J.R.E. 803(a)(1)(A), the court should consider the following factors

(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion or a summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducements or coercion for the making of the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement and (15) the presence or absence of corroborating evidence.

[Gross, supra, 216 N.J. Super. at 109-10.]

Defendant argues the judge erred because six factors from this list required the exclusion of defendant's statement to the detectives. Defendant contends the statement was not reliable because: (1) Robinson was in custody in a halfway house; (2) the detectives forced him to speak to them while he was in custody; (3) Robinson testified he had been under the influence of drugs on the night of the shooting; (4) before the grand jury, he expressed uncertainty about his identification of defendant when he said, "What I saw was possibly a shooting, that [defendant] shot [Ayo]"; (5) the detectives, not Robinson, first implicated defendant as a possible suspect; and (6) the State did not corroborate the identification with forensic evidence.

Initially, we note that, under N.J.R.E. 803(a)(1)(B), Robinson's testimony before the grand jury was admissible without reference to the Gross reliability factors.

In addition, the statement given to the police detectives shortly after the shooting was reliable and admissible under N.J.R.E. 803(a)(1)(A). It was recorded and Robinson signed a transcript of the statement. Judge Hutchins-Henderson considered the Gross factors and found the following facts: Robinson had no connection or interest in the matter other than being a witness from the neighborhood where the matter occurred; he gave the statement to law enforcement officers at a halfway house, where he was in custody on unrelated charges; he was not a suspect or target of the police investigation; he did not have a physical or mental condition that negatively affected the statement's reliability; no one was present during the interview that might have influenced Robinson; he did not incriminate or exculpate himself; the statement was recorded in its entirety; Robinson had no motive to fabricate; he was not coerced or pressured into making the statement; he knew the statement would be used in aid of a prosecution; he acknowledged making the statement and his recantation "may be something of a convenience rather than a true recollection"; and the State had the testimony of other witnesses to corroborate Robinson's prior identification of defendant.

The judge specifically considered and rejected the factual arguments made by defendant. For instance, the judge did not find Robinson's custodial status at a halfway house probative in determining reliability because he was in custody on a different matter. The court also considered Robinson's drug abuse but found he was not impaired when he made the statement. The allegation that the detectives first mentioned defendant as a suspect did not make Robinson's identification unreliable, and no one coerced or pressured Robinson to identify defendant. Finally, although the State did not have forensic evidence, it had the testimony of other witnesses to corroborate the accuracy of Robinson's identification.

We review the evidentiary rulings of the trial court under the abuse of discretion standard. State v. Harris, 209 N.J. 431, 439 (2012); State v. Merritt, 247 N.J. Super. 425, 434 (App. Div.) (applying abuse of discretion standard to admission of prior inconsistent statements), certif. denied, 126 N.J. 336 (1991). We also defer to factual findings of the trial judge made after an evidentiary hearing. State v. Robinson, 200 N.J. 1, 15 (2009). The record on this appeal gives us no reason to disturb the trial judge's factual findings or analysis of the facts in applying the Gross factors to conclude that Robinson's prior testimony and statement were admissible.

Next, in his pro se supplemental brief, defendant contends the trial court erred in failing to instruct the jury on the proper use of evidence that defendant's brother threatened Robinson. During the State's case in chief, Robinson testified that defendant's brother had confronted him about having identified defendant. In the defense case, defendant's brother admitted on direct examination that he was involved in an altercation with Robinson but said Robinson first swung at him. He denied threatening Robinson or knowing who Robinson was at the time. Defendant did not request a limiting instruction regarding any of this testimony.

We "have long permitted admission of evidence of threats and coercion" to explain changed testimony. State v. Pierro, 253 N.J. Super. 280, 286 (App. Div.), certif. denied, 127 N.J. 564 (1992); accord State v. Gray, 112 N.J. Super. 412, 415-18 (App. Div. 1970), certif. denied, 57 N.J. 596 (1971). Evidence of threats is also admissible to prove a defendant's consciousness of guilt if the defendant made the threats or if a third-party made the threats with the defendant's consent or knowledge. State v. Rechtschaffer, 70 N.J. 395, 414-15 (1976); State v. Goodman, 415 N.J. Super. 210, 232 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011); State v. Buhl, 269 N.J. Super. 344, 364-65 (App. Div.), certif. denied, 135 N.J. 468 (1994). Threats by a third-party may also be admissible based solely on defendant's familial relationship with the third-party. See State v. Valasquez, 391 N.J. Super. 291, 315 (App. Div. 2007) (citing State v. Graves, 301 So. 2d 864, 866 (La. 1974) (admitting evidence of coercion by defendant's wife)). But see People v. Perez, 337 P.2d 539, 541-43 (Cal. Ct. App. 1959) (error to admit evidence of threats by brother over defense objection when the family relationship was the sole evidence that the defendant authorized or knew of the threats).

We find no plain error, R. 2:10-2, in the absence of a limiting instruction regarding testimony about the brother's alleged threat. See State v. Lassiter, 197 N.J. Super. 2, 9 (App. Div. 1984) (defendant's decision to meet adverse testimony by disputing the facts may constitute a tactical decision to forgo a limiting instruction), certif. denied, 101 N.J. 215 (1985); see also State v. DiRenzo, 53 N.J. 360, 383-84 (1969) (finding no plain error in failure to give limiting instruction sua sponte following evidence of defendant's dangerousness when admitted for impeachment and to show fear of retaliation).

With respect to defendant's other pro se arguments on appeal, we find insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Finally, defendant urges that his sentence is excessive. We exercise limited, deferential review of a sentence and must affirm the sentence unless "there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). An abuse of discretion only exists if: "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

The court considered defendant's prior criminal record, as well as the manner in which he committed the murder, and it found aggravating factors 3, 6, and 9. N.J.S.A. 2C:44-1(a)(3), (6), and (9). Defendant contends his criminal record "is not the sort of sustained, violent list of convictions which would support a sentence of more than the minimum term." Yet, defendant's criminal record consists of twenty separate events in twenty-five years of life. As a juvenile, defendant had eight petitions filed against him and was adjudicated delinquent three times for disturbing the peace, assault, and robbery. As an adult, he was arrested eight times and convicted three times of indictable drug offenses.

The court did not err in these determinations. Defendant's juvenile and adult criminal history was sufficient to support a sentence of more than the minimum term. See State v. Miller, 411 N.J. Super. 521, 534-35 (App. Div. 2010), aff d in part, 205 N.J. 109, 128 (2011); State v. Ross, 335 N.J. Super. 536, 542-43 (App. Div. 2000), certif. denied, 167 N.J. 637 (2001).

Defendant argues the court should have found mitigating circumstances because of his young age and his two children. He also contends a lower sentence was warranted because "the offense was apparently based on an ongoing dispute between drug dealers and was the result of a heated argument." The trial court explicitly refused to find any mitigating factors after considering the evidence. Its determination was not an abuse of discretion, especially since defendant committed a murder while on probation on prior drug charges.

It appears that the court did err, albeit in favor of defendant, by failing to impose the correct period of parole ineligibility in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Instead of imposing a period of parole ineligibility of eighty-five percent of the forty-year prison sentence, that is, thirty-four years, the court stated that defendant is ineligible for parole for thirty years. See State v. Ramsey, 415 N.J. Super. 257, 271-72 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011). Similarly, the judgment of conviction states that the forty-year sentence is subject to NERA but also specifies a thirty-year period of parole ineligibility instead of thirty-four years.

Because the State did not cross-appeal, we do not otherwise address the court's failure to apply the mandatory parole ineligibility term required by NERA. See State v. Kearns, 393 N.J. Super. 107, 111-13 (App. Div. 2007). We leave it to the State to present initially to the trial court any application to correct the illegal sentence.

Affirmed.