STATE OF NEW JERSEY v. DONTE WILLIAMS

NOT FOR PUBLICATION WITHOUT THE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.

DONTE WILLIAMS, a/k/a

DONTE ISAIAH WILLIAMS, a/k/a

DONTE R. WILLIAMS,

Defendant-Appellant.

_______________________________________________

August 25, 2014

Submitted July 23, 2014 - Decided

Before Judges Lihotz and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-02-0281.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried to a jury in 2006, defendant, Donte Williams, was convicted of first-degree aggravated manslaughter of Che Broadus (Broadus), N.J.S.A. 2C:11-4(a) (count one); first-degree attempted murder of Albert Windham (Windham), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(2) (count two); second-degree aggravated assault of Windham, N.J.S.A. 2C:12-1(b)(1) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); third-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4 (count five); and fourth-degree knowing possession of a defaced weapon, N.J.S.A. 2C:39-9(e) (count six). After appropriate mergers, defendant was sentenced to a twenty-five-year term on count one and a twenty-year consecutive term on count two.

Defendant appealed and we affirmed his convictions on counts two, three, four, five, and six, but vacated his conviction on count one and remanded for a new trial for failure to charge reckless manslaughter as a lesser included offense. State v. Williams, No. A-0729-06 (App. Div. Nov. 10, 2008) (slip op. at 18-19, 25), certif. denied, 197 N.J. 477 (2009).

We repeat the relevant facts from our prior opinion.

This appeal arises out of the shooting of two young men in an automobile, Broadus and Windham, in the early morning hours outside of a dance club. Broadus died from his gunshot wounds. Windham was injured in his left hand, but survived. The State's proofs at trial depicted the following pertinent chronology of events.

On the night of August 28, 2004, Windham, Broadus, Antoine Walker ("Walker"), Antwan Johnson ("Johnson"), and several other friends went to Teen Night at Club Krome, a dance club in Sayreville. That same night, defendant also went to Club Krome, accompanied by Shawn Morris-Greene ("Morris-Greene") and Osbourne Mayers ("Mayers"). Defendant at the time was sixteen years old.

At some point inside the dance club that evening, Morris-Greene and Johnson bumped into each other, and engaged in a "stare off." Johnson, Windham, and Walker then walked over to defendant and Morris-Greene, and an argument ensued. During that confrontation, Windham and defendant got into what was described as a "gang-related" altercation, and Windham noticed a red bandana in defendant's hand. Morris-Greene then pulled out a pocket knife and told the others to "back off." The club's bouncers separated the two groups. Johnson told the bouncers that Morris-Greene had a knife. Consequently, Morris-Greene was ejected from the club. Johnson also left the premises early, but Broadus, Windham, and Walker remained at the club until it closed.

Shortly after the altercation with Johnson's group, defendant left the club with Lamar Danzey ("Danzey"). They met up with Morris-Greene, who had been waiting outside. The three young men left together in Danzey's car. Danzey then drove defendant and Morris-Greene to defendant's house in Rahway.

While Danzey and Morris-Greene remained outside, defendant went into his house. He returned a few minutes later wearing a dark hooded sweatshirt, a blue basketball jersey, and a black bandana. After defendant placed these items in the trunk, the trio headed back to Club Krome.

When defendant, Danzey, and Morris-Greene arrived back at Club Krome, Danzey parked his car across the street behind a restaurant. Danzey went inside the club, while defendant and Morris-Greene remained in Danzey's car.

Sometime between 12:30 a.m. and 1:00 a.m., the club closed. Danzey returned from the club to his car with Faith Taylor ("Taylor") and Jennifer Muriel ("Muriel"). Danzey testified that at this point, defendant instructed him to "wait for him." Consequently, Danzey, Taylor, Muriel and Morris-Greene all remained in Danzey's car. Danzey, Muriel and Morris-Greene testified that they then watched defendant walk toward Club Krome. All three of those witnesses stated that he was then wearing a blue jersey.

At about the same time, Broadus, Windham, and Anthony Stover ("Stover") walked out of the club and headed for Broadus's car. That vehicle pulled out of the club's parking lot, onto Old Spye Road, and stopped at a traffic light. Broadus was driving, Windham was in the front passenger seat, and Stover was in the rear passenger seat.

Suddenly, Windham heard gunshots coming from his right. Windham turned to his right and saw a male wearing a black hooded sweatshirt with the hood up and a bandana, standing about three to four feet from the passenger side window, shooting at Broadus's car. Several other club patrons and a bouncer similarly testified that the shooter was wearing a hooded sweatshirt and a bandana.

About three or four shots were fired. Broadus was struck in the chest, and died shortly thereafter as a result of his wounds. Windham was shot in the left hand, but eventually recovered.

Following the gunshots, defendant was observed running back towards Danzey's car, which was still parked across the street from the club. Danzey then drove defendant and Morris-Greene to Frank N' Fries, a local restaurant. Morris-Greene testified that he saw defendant place the rolled-up sweatshirt and jersey in a plastic bag and leave it near a garbage can at the restaurant. Morris-Greene further testified that he saw Mayers at Frank N' Fries, but that he did not tell Mayers at that time anything about the shootings.

Four days later on September 1, defendant was arrested at his home. That same day, defendant's bedroom was searched, pursuant to a search warrant. During the course of that search, the police found a fully-loaded .380 caliber semi-automatic handgun, wrapped in a blue bandana under the defendant's bed with one round in the chamber. The gun was defaced. Additionally, the police found in defendant's bedroom a spent shell casing, two bandanas, a blue basketball jersey, a black t-shirt with a white t-shirt underneath it, and a dark hooded sweatshirt. A forensic ballistics expert who testified for the prosecution determined that the bullet removed from Broadus's chest and the bullets removed from his car had been shot from the same gun that the police found in defendant's bedroom.

[Id. slip op. at 3-7 (footnotes omitted).]

Before defendant was retried, he moved to suppress out-of-court identifications by Windham and Yanina Castro, defendant's former girlfriend. On April 23, 2010, the court conducted a Wade1 hearing and heard the testimony of Captain Dennis McFadden who displayed a six-photo array to Castro. McFadden was not involved in the underlying investigation and was asked only to display the array to Castro. After handing the photos to Castro, McFadden asked her to look at each one carefully. Castro identified defendant's photo, nodding her head and telling McFadden, "This is him."

The trial court determined that McFadden's testimony was credible and found no evidence of suggestiveness in the procedure he employed. Defendant's counsel argued that the photo array itself was impermissively suggestive and requested an opportunity to brief the issue of "the preparation of the array . . . as opposed to the procedure." Because the photo array introduced at the hearing did not contain the original color photos that were shown to Castro, the court ordered the State to provide defendant's counsel with "identical copies" of the photographs used in the array.

The State was prepared to call Detective Amy Noble who displayed the photo array to Windham, but since Noble did not prepare the array that defendant was challenging, his counsel decided that her testimony was not necessary.

On May 7, 2010, after being provided with the color photos that were contained in the arrays2 and hearing oral argument, the court denied defendant's motion to suppress the out-of-court identifications by Windham and Castro, finding no evidence of suggestiveness.

Defendant was retried on the remaining count of aggravated manslaughter and convicted by a jury. He was sentenced to a consecutive term of twenty-five years with an eighty-five percent period of parole ineligibility and five years of parole supervision.

On appeal, defendant challenges the Windham out-of-court identification and his sentence, raising these points

point i

the admission into evidence of albert windham's out-of-court identification, which was unduly suggestive and unreliable, violated donte williams's right to a fair trial and due process of law, u.s. const., amend. xiv; n.j. const.art. I, para 1, and requires reversal of his convictions.

point ii

the defendant's sentence is excessive.

I.

Defendant claims he was denied due process and the right to a fair trial by the admission of Windham's out-of-court identification. As Windham's identification predated the Court's decision in State v. Henderson, 208 N.J. 208 (2011), we review his claim under the two-prong test articulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), and adopted by our Court in State v. Madison, 109 N.J. 223, 232-33 (1988).

The Manson/Madison test of determining whether an out-of-court identification is admissible at trial requires the trial court to first determine if the identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503 (2006). We assign "very considerable weight" to the trial court's findings regarding whether an identification procedure was impermissibly suggestive. State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)). We will not disturb the trial court's findings that photographic identification procedures were reliable if there is sufficient credible evidence in the record to support the findings. Ibid.

In determining whether the identification procedure was impermissibly suggestive, the test is "whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer." Farrow, supra, 61 N.J. at 451.

Defendant does not challenge the procedure employed in displaying the photographic array to Windham. Rather, he claims the array itself was impermissibly suggestive because "the description of the shooter a man with long dreadlocks wearing dark clothing and having a larger nose matched only one picture in the array, that of the defendant."

The trial court described the array in detail

I think the photographs are very similar in nature of young, around the same age black males, similarly posed, similarly dressed, albeit with a different color -- two different color tee shirts, one set of three black, one set of three yellow. So it's evenly matched. All have either braided or full dreadlocked hair.

The court noted that Captain McFadden conducted the identification procedure consistent with guidelines issued by the Attorney General, see Office of the Attorney Gen., N.J. Dep't of Law and Pub. Safety, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (2001), and found no evidence of suggestiveness

The [c]ourt cannot, frankly, see anything particularly suggestive about the photograph of the defendant that would lead anyone to make a misidentification based on the suggestivity of the photographs themselves. They have been marked into evidence for purposes of review at some future date, but at least, for purposes of this hearing, the [c]ourt does not find any suggestivity in these photographs. They appear to be selected with all due proper care and caution by the police department.

We discern no basis for disturbing the trial court's well-reasoned determination. Windham described the shooter at trial as wearing "a black bandanna on top of his head, a hoody, and some jeans." When asked to describe the shooter's hairstyle, Windham replied, "[h]e had dreads." Each of the six males in the photo array is wearing hair in a braided or dreadlocked style. The individuals depicted in the photo array were similarly dressed, posed, and around the same age. The trial court's finding that there was nothing particularly suggestive about the photograph of defendant that would lead to a misidentification, was based on credible evidence in the record.

II.

Defendant next argues that his sentence is excessive. On the Broadus aggravated manslaughter conviction, the court sentenced defendant to a twenty-five year term to run consecutively with the twenty-year term he was already serving. The court found no mitigating factors and the following aggravating factors: N.J.S.A. 2C:44-1(a)(1), (offense committed in an especially heinous, cruel, or depraved manner); N.J.S.A. 2C:44-1(a)(2), (gravity and seriousness of harm inflicted on the victim); N.J.S.A. 2C:44-1(a)(3), (risk that the defendant will commit another offense); N.J.S.A. 2C:44-1(a)(5), (substantial likelihood that the defendant is involved in organized criminal activity); N.J.S.A. 2C:44-1(a)(6), (extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1(a)(9), (the need for deterring the defendant and others from violating the law). Defendant challenges the court's findings as to factors one, two, three and five.

As to factors one and two, the court made the following findings

In this case this young man, Mr. Williams, as a result of his believing for whatever reason that he was being disrespected made a conscious decision, a depraved decision, to go home, the [c]ourt notes he was not even able to drive, but had to secure transportation, he secured transportation to Rahway, retrieved a gun, went back and laid in wait, laid in wait until the person against whom he intended to use the weapon was stopped in a vehicle, waiting to pull onto the highway, seat-belted and locked in a position where he could neither resist, nor run, nor protect himself. Mr. Williams'[s] conduct, depraved, quite frankly, cowardly, taking of a weapon, pointing it directly at the person with whom he had the quarrel, minor scuffle, minor disagreement, didn't pull the trigger once or twice, but from the evidence apparently emptied the weapon into the vehicle killing an innocent, uninvolved, and from what all the evidence shows, college-bound young man. The taking of his life and the manner in which it was taken clearly fit aggravated factors one and two.

Defendant argues his crime lacked "particular heinousness" because the victim of his shooting was not the intended victim and the incident was "brief." We find that these arguments are so totally frivolous that they do not warrant further discussion in our opinion. R. 2:11-3(e)(2).

As to aggravating factor three, defendant argues that the risk of future offenses "is arguably present in every criminal case." The sentencing court, noting a prior offense involving defendant's use of a weapon during a robbery, found a substantial risk that defendant will commit another offense.

As to factor five, the court found a substantial likelihood that defendant was involved in gang activity. The court noted the color of defendant's clothing, his bandanna, language, tattoo, style of dress, and mannerisms, including the way he held his gun while shooting the victims, all supported the conclusion that he desired to maintain gang ties and the gang-related nature of this shooting.

Appellate review of a sentence focuses upon the question of whether the findings of fact regarding aggravating and mitigating factors were based on competent and reasonably credible evidence in the record, whether the court correctly applied the sentencing guidelines, and whether the application of the facts to the law constituted such a clear error of judgment as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984).

Defendant argues that his crime was in the nature of "personal revenge" and not ordered by gang hierarchy. This argument stands in stark contrast to the trial testimony and even the arguments made by defendant's counsel during summation. At trial, Windham testified that he was affiliated with a faction of the Crips, while the people he had an altercation with on the night of the shooting, including defendant, were members of the Bloods. In his summation, defendant's counsel conceded "no question that these two groups were in the club that night. One being the Crips from Union. . . . [a]nd . . . the other set of individuals, if you will, were Bloods." Defendant's counsel also described the altercation that led to the shooting as "some type of gang beef[.]" There is substantial evidence in the record to support the court's finding of aggravating factors three and five.

We find defendant's remaining arguments, including his argument that he should not have received a sentence in excess of the fifteen-year term offered in the plea agreement he rejected, to be without merit and not warranting any further discussion in our opinion. R. 2:11-3(e)(2).

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

2 Although there were two arrays, the same six photos were used in both, arranged in a different order.