STATE OF NEW JERSEY v. WILLIAM W. CROWLEY

NOT FOR PUBLICATION WITHOUT THE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.

WILLIAM W. CROWLEY, a/k/a

MAURICE A. MATIN, MAURICE

CROWLEY, MAURICE W. CROWLEY,

WILLIAM CROWLEY, WILLIAM M.

CROWLEY, and WILLIAM WADE

CROWLEY,

Defendant-Appellant.

____________________________________

July 8, 2014

 

Submitted February 5, 2014 - Decided

 

Before Judges Sapp-Peterson, Maven, and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 09-09-0859 and 09-09-0860.

 

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

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals his 2011 conviction for murder and related charges arising out of the death of Robert Pretlow. On appeal, defendant raises the following points for our consideration:

POINT I

DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON ATTEMPTED MURDER AS A LESSER-INCLUDED OFFENSE OF KNOWING AND PURPOSEFUL MURDER. (NOT RAISED BELOW).

 

POINT II

 

THE TRIAL JUDGE ERRED IN GIVING A FLIGHT INSTRUCTION TO THE JURY BECAUSE THERE WAS NO EVIDENCE ADDUCED AT TRIAL THAT DEFENDANT FLED TO AVOID ARREST OR PROSECUTION.

 

POINT III

 

DEFENDANT WAS DENIED DUE PROCESS OF LAW BY THE STATE'S LOSS OR DESTRUCTION OF ITS ENTIRE FILE, INCLUDING POTENTIALLY EXCULPATORY EVIDENCE (PARTIALLY RAISED BELOW).

 

POINT IV

 

THE STATE'S ARGUMENT IN SUMMATION THAT DEFENDANT WOULD HAVE GONE TO THE POLICE IF HE FEARED RETRIBUTION FROM THE VICTIM'S FAMILY, USED TO BOLSTER ITS ARGUMENT THAT DEFENDANT'S FLIGHT FROM NEW JERSEY EVINCED CONSCIOUSNESS OF GUILT, CONSTITUTED PROSECUTORIAL MISCONDUCT NECESSITATING REVERSAL. (NOT RAISED BELOW).

 

 

 

 

POINT V

 

DEFENDANT'S CONVICTION SHOULD BE REVERSED ON THE BASIS OF CUMULATIVE ERROR. (NOT RAISED BELOW).

 

We have considered the points advanced in light of the record, the arguments advanced in the briefs, and the governing legal principles. We reject each of the points raised and therefore affirm.

The fatal shooting of Pretlow occurred in the late evening of July 9, 1989. Earlier in the evening, defendant had been with his common-law wife, Ms. Daniels,1 who lived in a public housing complex in Elizabeth. Together, defendant and Daniels had a six-year-old son and had been together for nine years. One of defendant's friends, co-defendant Walter Rajoh Griggs, stopped by that evening to visit defendant, and he and defendant later left the apartment.

Witnesses present at the scene where the fatal shooting occurred, identified defendant, Griggs, and Bobby Ray Davis, as the three men who approached the victim, who was speaking to a young woman, and surrounded him. The witnesses then saw the three men, all armed with hand guns, shoot the victim, who fell over. Some of the witnesses were pre- and young teens, who knew defendant as the stepfather of their friend. Another witness, twenty-seven-year-old Ms. Graham, saw the three men in the courtyard with Pretlow and the young woman. Pretlow was also Graham's nephew. She knew defendant as an acquaintance of her uncle. When she heard gunshots, she looked out her bedroom window and saw defendant "running but also shooting towards First Street" and "returning fire to whoever was shooting at him." She saw defendant fall briefly, get up and then continue running.

In addition to statements to police, witnesses identified defendant, Griggs and Davis through photo arrays. Despite multiple bench warrants for his arrest, police were unable to apprehend defendant until October 19, 2008, when he was arrested in Buffalo, New York. At the time, he identified himself as William Harris, born June 9, 1944. Defendant's actual birthdate is July 1944.

A grand jury indicted defendant on charges arising out of Pretlow's death in September 2009. The indictment charged defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three). In a separate indictment, which the State and defense agreed would be prosecuted separately, the grand jury charged defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count one). The parties subsequently agreed that this indictment would be prosecuted as a fourth-degree offense.

The State's original case file no longer existed resulting in the State reconstructing it. Prior to trial, defendant moved to dismiss the murder indictment on the basis that the State's destruction of its file violated his right to due process. The court denied the motion.

The State also filed a motion prior to trial seeking to admit evidence that defendant fled to another state following the fatal shooting. The court granted the motion.

The jury convicted defendant of all charges. In a separate trial, the jury found defendant guilty of the charge in the second indictment. At sentencing, the court imposed an aggregate sentence of life imprisonment with a thirty-year period of parole ineligibility on the first indictment. In connection with the second indictment, the court imposed a consecutive eighteen-month sentence, with an eighty-five percent period of parole ineligibility, under the No Early Release Act (NERA), N.J.S.A. 2C:43:7.2. The present appeal followed.

 

I.

In Point III2, defendant contends the court should have dismissed the first indictment because "during the twenty years between the homicide and [his] arrest the State lost its entire trial file[,]" and as a result, he was "denied his right to due process of law under the New Jersey Constitution."

"[T]he decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996) (internal citation omitted), certif. denied, 149 N.J. 142 (1997). Whether a defendant's right to due process has been impermissibly violated due to the destruction or loss of evidence is evaluated by considering three factors: "(1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense; and (3) whether defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.) (internal citations omitted), certif. denied, 101 N.J. 335 (1985).

There is no evidence in the record the State deliberately destroyed or lost evidence. The trial court, after considering testimony from Assistant Prosecutor Ann Luvera, a trial supervisor, who detailed the State's efforts to locate and recreate defendant's file, found there was no evidence the State acted in bad faith. This finding by the court is entitled to deference because it is supported by the record. See State v. Elders, 192 N.J. 224, 243-44 (2007). There is no evidence the State exhibited official animus towards defendant or engaged in "'a conscious effort to suppress exculpatory evidence.'" State v. Serret, 198 N.J. Super. 21, 26 (App. Div. 1984) (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2533, 81 L. Ed. 2d 413, 421-22 (1984)), certif. denied, 101 N.J. 217 (1985).

Nor is there any evidence the State withheld exculpatory evidence which was material to defendant's defense. State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009). To be material, the "evidence must both possess an exculpatory value that was apparent before [it] was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, supra, 467 U.S. at 489, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422; Hollander, supra, 201 N.J. Super. at 479-80.

"Alternatively, if the defendant cannot establish that the now lost evidence had 'apparent' exculpatory value and can show only that the evidence was 'potentially' useful or exculpatory, then the defendant can show a due process violation by establishing that the evidence was destroyed in bad faith." Mustaro, supra, 411 N.J. Super. at 103 (quoting Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988)). Accord State v. Marshall, 123 N.J. 1, 109-10 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); George v. City of Newark, 384 N.J. Super. 232, 243-44 (App. Div. 2006). As noted earlier, there is no evidence the State acted in bad faith.

Defendant posits that "[p]erhaps lost photographs" or "other, now unknown[] witnesses" may have provided exculpatory evidence on his behalf. The State's case in chief, however, was not largely dependent upon the photographic identification of defendant. Rather, witnesses who identified defendant as one of the shooters and who saw him fleeing the scene immediately after Pretlow was shot, knew him either because of his relationship with Daniels, who lived in the neighborhood where the shooting occurred, or simply knew him from the area. Consequently, the proffered exculpatory evidence to which defendant refers lacked apparent exculpatory value, let alone clear exculpatory value. See Mustaro, supra, 411 N.J. Super. at 103.

Likewise, there is no evidence defendant was prejudiced by the loss or destruction of the evidence. Hollander, supra, 201 N.J. Super. at 479. "The omitted evidence must be evaluated in the context of the entire record." State v. Washington, 165 N.J. Super. 149, 156 (App. Div. 1979). We therefore conclude the court did not err in denying defendant's motion to dismiss the indictment because of the loss of the State's file.

II.

In Point II, defendant contends the court erred when it granted the State's motion to charge the jury on flight. Defendant does not challenge the language of the specific jury instruction on the flight charge, which defendant acknowledges substantially tracked the model jury charge on flight, Model Jury Charge (Criminal), "Flight" (May 10, 2010), and which also, at defendant's request, included an alternate explanation for his departure from New Jersey. Rather, defendant urges there was an insufficient evidentiary basis for the instruction. We disagree.

Whether there exists a sufficient evidentiary basis to support a flight charge is within the trial judge's discretion. State v. Long, 119 N.J. 439, 499 (1990). An instruction on flight "is appropriate when there are 'circumstances present and unexplained which . . . reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" State v. Latney, 415 N.J. Super. 169, 175-76 (App. Div. 2010)(alteration in original) (quoting State v. Mann, 132 N.J. 410, 418-19 (1993)). "The jury must be able to find departure and 'the motive which would turn the departure into flight.'" Id. at 176 (quoting State v. Wilson, 57 N.J. 39, 49 (1970)).

Although evidence of flight is generally admissible, "[t]he potential for prejudice to the defendant and the marginal probative value of evidence of flight," requires the court to carefully consider the manner in which such evidence is presented to a jury. Mann, supra, 132 N.J. at 420. The probative value of flight evidence therefore depends upon

the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.

 

[Ibid. (quoting United States v. Myers, 550 F.2d 1036, 1049 (1977)).]

 

Daniels, defendant's common-law wife, testified that on the night of the shooting, she was threatened by men looking for defendant. When she saw defendant the following month, it was in New York. Defendant told her that he had been shot in the rib area and Griggs had driven him to a hospital in New York, where he told staff that he had been shot while "walking down the street . . . [at] a random driveway." She told him about the threats she had received from the men looking for him. Defendant asked Daniels to remain with him but she refused and never saw or spoke to him again, notwithstanding that they shared a child together. Nineteen years later, when apprehended, defendant misrepresented his name and birthdate.

As defendant urges, it is plausible that he left the area out of fear of retaliation from friends or associates of Pretlow, particularly since those individuals went to Daniels' home looking for him and had threatened her. On the other hand, it is equally plausible that defendant fled the area to escape apprehension by law enforcement authorities. He had no further communication with the mother of his child, went to a hospital in New York City for treatment, rather than to a local Elizabeth hospital, and upon apprehension nineteen years later, provided false identity.

Thus, there is substantial evidence of "unexplained circumstances" beyond mere departure which reasonably support an inference that defendant fled with a consciousness of guilt. The fact that evidence supports the additional or alternative conclusion that defendant may have left the area out of fear of retaliation from Pretlow's friends, does not rule out an instruction on flight. Where a defendant produces evidence from which an alternative explanation for departure may be inferred, a "trial court should instruct the jury that if it finds the defendant's [evidence] credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Mann, supra, 132 N.J. at 421. Given the equally plausible reasons for defendant's departure from New Jersey after the shooting, the court appropriately instructed the jury as to what inferences could be drawn from the flight evidence depending upon how it resolved the factual dispute. Moreover, the trial court granted defendant's application to instruct the jury as to the proposed alternative explanation for his flight.

Defendant urges that a charge on flight is only appropriate where the evidence establishes the accused had knowledge that "he [or she] was being sought by the police." We disagree. Evidence of flight need not establish that the accused is fleeing from custody or hiding from the authorities. Wilson, supra, 57 N.J. at 49. Rather, a flight instruction is appropriate when an inference may be drawn from the evidence that a defendant's motive for leaving the scene was to avoid apprehension for offenses charged in the indictment. See Ibid. (stating that a jury may infer a defendant fled the scene of a crime with the intent of avoiding arrest and criminal charges). Those inferences may be drawn from the evidence presented at trial. We therefore conclude the court did not abuse its discretion in charging the jury on flight. Long, supra, 119 N.J. at 499.

III.

For the first time, in this appeal, defendant raises two additional grounds, which he contends constitute grounds for reversal of his conviction. In Point I defendant contends the court failed to instruct the jury on the lesser-included offense of attempted murder and, in Point IV, defendant urges the prosecutor's remarks in summation that "innocent people don't run. Innocent people go to the police if they're afraid," impermissibly bolstered the State's contention that defendant's flight from New Jersey evinced consciousness of guilt. Because defendant failed to request a lesser-included jury instruction on attempted murder and failed to object to the prosecutor's comment, we review the claimed errors under the plain error standard, namely, if errors were committed, whether they amounted to errors "clearly capable of producing an unjust result." R. 2:10-2.

A. Jury Instruction on Attempted Murder

"An essential ingredient of a fair trial is that a jury receive adequate and understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997). "Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" Ibid. (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). Accordingly, "[e]rrors . . . [in jury instructions] are poor candidates for rehabilitation" under the plain error rule. State v. Simon, 79 N.J. 191, 206 (1979).

Where, as here, no request for the lesser-included charge was made, the "trial court has an independent obligation to instruct on [a] lesser-included charge[] when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). "[C]learly indicate[d]" facts means that "the evidence is jumping off the page[.]" State v. Denofa, 187 N.J. 24, 42 (2006).

"N.J.S.A. 2C:1-8d[] codifies the common-law rule that an accused may be convicted of a lesser-included offense." State v. Ruiz, 399 N.J. Super. 86, 95 (App. Div. 2008). "Attempted murder is an included offense of homicide." State v. Reddish, 181 N.J. 553, 626 (2004) (citing N.J.S.A. 2C:1-8(d)(2)). Attempted murder requires greater culpability than murder itself:

Although an actor may be guilty of murder if he or she intended to kill or was practically certain that his or her actions would cause or would be likely to cause death, the actor is guilty of attempted murder only if he or she actually intended the result, namely, death, to occur.

 

[State v. Rhett, 127 N.J. 3, 7 (1992).]

 

Here, there was no clear indication of a rational basis for the jurors to acquit defendant of the murder charge but still convict him of the proposed lesser offense of attempted murder. A defendant "is guilty of attempted murder only if he . . . actually intended the result, namely, death to occur." Rhett, supra, 127 N.J. at 7. Criminal attempt is defined as follows:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he [or she] . . . [p]urposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be[.]"

 

[N.J.S.A. 2C:5-1(a)(1)].

If defendant and others intended to kill Pretlow by shooting him and he survived, an attempted murder charge would have been appropriate. However, because the shooting caused Pretlow's death, defendant's conduct was incompatible with the elements of attempted murder. See State v. Gilliam, 224 N.J. Super. 759, 763 (App. Div. 1988). Moreover, there was no clear indication of a rational basis for the jurors to acquit defendant of murder as either a principal or an accomplice. The evidence was that at least three shots were fired at Pretlow. Three witnesses placed defendant within shooting range. Two of those witnesses recalled that defendant was armed and stood on the left side of Pretlow's body, where, according to the medical examiner's testimony, the fatal shot was fired. Given those circumstances, the jury could have found defendant guilty of murder as a principal because there was substantial credible evidence in the record to support the conclusion that he delivered the fatal shot.

Additionally, even if defendant did not fire the fatal shot that entered the left side of Pretlow's head, the jury was permitted to find him guilty of accomplice-liability murder. To be guilty of accomplice-liability murder under N.J.S.A. 2C:11-3(a)(1) and (2), "the defendant must intend for the principal to engage in the killing, and the defendant must act with purpose or knowledge in promoting or facilitating the killing." State v. Norman, 151 N.J. 5, 32 (1997). See also N.J.S.A. 2C:2-6(c) (defining accomplice). If the jury accepted the testimony of two of the three youths who testified they witnessed the shooting, it could have concluded that Davis, Griggs, and defendant intended to kill Pretlow by shooting him at close range. Even if defendant's shot was not fatal in itself, the evidence suggested defendant promoted and participated in the commission of the murder by shooting the victim. Therefore, the jury was permitted to convict him as an accomplice because his conduct contributed to causing Pretlow's death. See State v. Bielkiewicz, 267 N.J. Super 520, 525-27, 536 (App. Div. 1993) (holding that where two co-defendants fired and only one shot caused victim's death, judge obligated to charge accomplice-liability murder). See Gilliam, supra, (quoting La Fave and Scott, Handbook on Criminal Law, 59 at 428-429 (1972)):

Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. Thus, if A, B, and C have each taken the life of another, A acting with intent to kill, B with an intent to do serious bodily injury, and C with a reckless disregard of human life, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice.

 

[224 N.J. Super. at 763-64]

 

We are not persuaded defendant's reliance upon two cases from other jurisdictions warrants a different outcome. In State v. Collins, 431 S.E.2d 188, 190 (N.C. 1993), the jury found the defendant guilty of first-degree murder. For the first time on appeal, the defendant argued the judge should have charged the jury on the lesser-included offense of attempted murder. Ibid. Evidence at trial demonstrated the victim died of complications from gallbladder disease a month after the defendant's gunshot wound to his chest. Id. at 192. Thus, the medical examiner opined "the gunshot wound . . . was not the cause of death." Ibid. The North Carolina Supreme Court held that the trial court should have charged attempted murder because "one of the elements (causation) of the offense of murder charged in the indictment remained in substantial doubt." Id. at 193. Those are not the circumstances here, as the evidence established the shooting caused Pretlow's death.

In Ledesma v. State, 761 N.E.2d 896, 898 (Ind. Ct. App. 2002), the judge instructed the jury on attempted murder as a lesser-included offense of murder over the defense counsel's objection. The jury found the defendant guilty of attempted murder. Ibid. The defendant appealed, arguing that attempted murder was not a lesser-included offense of murder. Id. at 897.

The evidence at trial established the defendant shot the victim twice in the stomach. Ibid. After the victim fell to the ground, two other men shot the victim in the back, stomach, and head. Ibid. The coroner "stated that the gunshot wounds to the victim's head and neck area were fatal shots and that although the wounds to the chest area were less likely to have been fatal they caused serious injury." Id. at 898. The Indiana Court of Appeals affirmed the conviction, finding the trial court did not err by instructing the jury on attempted murder because it was a lesser-included offense of murder and a serious evidentiary dispute existed as to whether the defendant or the other shooters killed the victim. Id. at 899-900. The factual circumstances in Ledesma differ from the circumstances presented here because the evidence presented was that defendant, Griggs, and Davis shot Pretlow at the same time.

B. Prosecutorial Misconduct

During closing arguments, defense counsel told the jury:

Now I also believe, you know, the State is going to stand up here, despite the fact that I insist that my client did not shoot this gentleman, that, you know, he fled, okay.

 

They're going to say, you know, because he was found in Buffalo, right, 22 years later that he was - - he's guilty, you know, guilty mind, right? Mark my words they're going to stand up there and say that because he left his children in Elizabeth and his girlfriend in Elizabeth and didn't come back after promising to take [Daniels] to the movies in the afternoon that he is guilty, he's guilty on there, right?

 

. . . .

 

Use your common sense. You know, he may not be a great father but you have any shred of evidence whatsoever that anybody told him that the police were looking for him?

 

There wasn't one word out of one witness. Now what's more likely, you know, is that my client . . . came knocking at [Daniels'] house, right? Who kicked [Daniels'] door in, menaced her, threatened her, looking for who? Who was it? Samat Pretlow and some other guys, right?

 

. . . .

 

And we do know that if you believe her she's telling him, hey, you know, by the way, Samat Pretlow is looking for you. As yourselves, use your common sense, would you stick around, you know?

 

The prosecutor responded:

Innocent people don't run. Innocent people go to the police if they're afraid. Innocent people live in their family home with their family.

 

Guilty people run. Guilty people leave their personal belongings and their car behind. Guilty people leave their wife, their significant other, and their children behind. Guilty people change their name. Guilty people change their date of birth.

 

[Emphasis added.]

 

Defense counsel posed no objection to this comment. Defense counsel later moved for a mistrial, but did so after the verdict. The court, however, sua sponte issued a curative instruction during the final charge:

I also want to reaffirm that although the State contended that if the defendant was afraid of Samat Pretlow and whoever else was there he would have gone to the police, I have to reaffirm that the defendant has no duty to say anything, to go to the police.

 

He is presumed innocent no matter what. He has a constitutional right to remain silent no matter what. He doesn't have to come forward with anything. So you have to know that and you can't consider the fact that he did not come forward in your deliberations, okay.

 

The court ameliorated any potential prejudice resulting from the remark with its strong curative instruction. Thus, while the prosecutor's comment was better left unsaid, the conduct was not so egregious that it deprived defendant of a fair trial. In addition to the curative instruction, the court reiterated that it was not defendant's burden to establish his innocence. See State v. Jackson, 211 N.J. 394, 407-08 (2012) (stating that a finding of prosecutorial misconduct requires a finding that defendant's right to a fair trial has been prejudiced as a direct result of a prosecutor's remarks). Coupled with the judge's instructions on burden of proof, the curative instruction alleviated any prejudice resulting from the prosecutor's remark. See State v. Jenkins, 349 N.J. Super. 464, 479 (App. Div.) (finding no prosecutorial misconduct where curative instruction given regarding prosecutor's implication that defendant bore burden of proof), certif. denied, 174 N.J. 43 (2002).

 

Defendant's remaining contention raised in Point V that cumulative error warrants reversal and a new trial is without sufficient merit to warrant discussion in written opinion. R. 2:11-3(e)(2).

Affirmed.

 

1 To provide some privacy to the common-law wife and a witness, the court has elected to use only their last names.

2 We address defendant's points in the sequence they were raised below rather than how they have been presented in defendant's appellate brief.