STATE OF NEW JERSEY v. TAHJ J. PINES

NOT FOR PUBLICATION WITHOUT THE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.

TAHJ J. PINES,1

Defendant-Appellant.

__________________________

April 14, 2016

Submitted January 19, 2016 Decided

Before Judges Messano and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-07-1467.

Joseph E. Krakora, Public Defender, attorney for appellant (Michelle A. Adubato, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Tahj J. Pines was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); and first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four).2 The trial judge merged counts one, two and three with count four and sentenced defendant on count four to a fifty-year term of imprisonment 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. The judge also imposed the appropriate fines and penalties.

On appeal, assigned counsel raises the following arguments

POINT I

THE FAILURE OF THE COURT TO VOIR DIRE THE JURY FOLLOWING TWO SHOOTING INCIDENTS DURING THE TRIAL WAS ERROR WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL (Partially raised below).

POINT II

THE COURT'S FAILURE TO SUA SPONTE CHARGE THE STATUTORY AFFIRMATIVE DEFENSE TO FELONY MURDER DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below).

POINT III

THE TESTIMONY OF DETECTIVE BALDWIN OPINING ON THE CREDIBILITY OF A WITNESS WAS IMPROPER AND DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below).

POINT IV

THE DISCRETIONARY EXTENDED TERM SENTENCE IMPOSED UPON THE DEFENDANT OF FIFTY (50) YEARS WITH 85% PAROLE INELIGIBLITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED (Not raised below).

Defendant raises the following arguments in a pro se supplemental brief

POINT I

THE STATE FAILED TO PROVE THAT THE APPELLANT WAS ENGAGED IN ANY CONSPIRACY WITH ANY OTHER PERSON TO COMMIT ROBBERY OR ARMED ROBBERY DEFINED BY THE [STATUTE] IN N.J.S.A. 2C:5-2

POINT II

THE STATE FAILED TO PROVE THAT APPELLANT COMMITTED THE CRIME OF ARMED ROBBERY AS DEFINED IN N.J.S.A. 2C:15-1[(b)] VIOLATING HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS [TO] DUE PROCESS AND [A] FAIR TRIAL.

We have considered the contention made in Point III of assigned counsel's brief in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.

The complained-of testimony occurred on cross-examination of a State's witness. Thus, any error in that testimony was invited. Under the invited error doctrine, trial errors that "were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). "In other words, if a party has 'invited' the error, he is barred from raising an objection for the first time on appeal." Ibid. (citation omitted.)

We decline to consider defendant's contentions in Points I and II of his supplemental brief that the jury verdict on the conspiracy and armed robbery charges was against the weight of the evidence. Because defendant did not file a motion for a new trial on that basis, the arguments are not cognizable on appeal. R. 2:10-1; State v. Reininger, 430 N.J. Super. 517, 538 (App. Div.), certif. denied, 216 N.J. 367 (2013). Accordingly, we focus on the contentions raised in Points I, II and IV of assigned counsel's brief.

I.

We derive the following facts from the record. The charges against defendant stemmed from the shooting death of Nathaniel Wiggins, a marijuana dealer. On March 11, 2008, Wiggins, Michael Smith, and Michael Gesauldi drove to a friend's home in Neptune. On their way back to Wiggins's apartment in Eatontown, they turned onto Ninth Avenue in Neptune. Wiggins, the driver, slowed down and waved to a group of three to five individuals, whom Wiggins appeared to know. Wiggins and his friends then proceeded to the Neptune Wal-Mart, where Wiggins received a phone call and walked away from the others to answer it. Wiggins later told Smith that the call was from the individuals they saw on Ninth Avenue, who wanted to buy marijuana from him.

Ian Everett and defendant's co-defendants, Kenneth Michael Bacon-Vaughters (Kenny Mike), LaShawn Fitch, and Aron Pines,3 were standing outside of Everett's home on Ninth Avenue in Neptune. After Kenny Mike left, the remaining three stayed outside the home and saw Wiggins, who they referred to as "the weed man," drive by. Wiggins previously sold marijuana to Aaron and Kenny Mike. Aron waved to Wiggins, who waved back.

After Wiggins drove by, a fight ensued near Everett's home, and he went to the corner of Ninth Avenue and Ridge Street to watch it. People began running when the police arrived. Everett returned to his home and heard dogs barking in his backyard. He went to the backyard and saw a gun laying there. He told Aron or Fitch to retrieve the gun and remove it from the backyard. Either Aron or Fitch complied.

Everett, Aron, and Fitch subsequently returned to Everett's home. After Fitch left, Everett and Aron smoked marijuana and played a video game. Fitch returned with the gun and joined them in smoking marijuana and playing the video game. Fitch later went to the roof and fired the gun once into the air. Everett told Fitch to take the gun out of his home. Aron and Fitch then began talking about "the weed man" and getting marijuana from him by using the gun. Aron said he was going to pick up Kenny Mike and left Everett's home sometime between 8:30 p.m. at 9:00 p.m. Fitch left shortly thereafter. Everett did not join them, and went to sleep.

At approximately 9:15 p.m. on March 11, Wiggins's girlfriend, Faith Montanino, returned home after work to the apartment she and Wiggins shared in Eatontown. They were conversing in the bedroom while Wiggins was weighing out marijuana, something Montanino saw him do in the past. They then heard a knock on the door. Wiggins looked out the bedroom window, said "Oh, shit[,]" and walked to the kitchen door. Montanino heard a loud commotion and walked to the kitchen, where she saw the apartment door ajar and Wiggins on the floor, holding his side. He said to her, "Faith, I've been shot. . . . Hide the weed, call the cops." Montanino put the marijuana and drug paraphernalia in a bag and put the bag in the trunk of her car. She then called 9-1-1 and reported that her boyfriend had been shot. On the 9-1-1 tape, Montanino was heard asking Wiggins "do you know who did this," "what's his name baby[,]" and Wiggins twice replied, "Kenny Mike."

At approximately 10:00 p.m., Police Officers Brett Paulus and Matthew Bailey from the Township of Eatontown Police Department received a report of shots fired at Wiggins's apartment building and responded to the scene. Police Officer Patrolman Gugliuzza later arrived, and he and Officer Paulus proceeded to Wiggins's apartment while Officer Bailey remained in the parking lot. The officers encountered a "hysterical" Montanino on the way to the apartment. When they arrived there, they found Wiggins on the floor. Wiggins grabbed Officer Paulus's leg and said, "I'm dying. Oh, God, I'm dying," and "Kenny Mike shot me." Officer Paulus then twice asked Wiggins who shot him and both times Wiggins said, "Kenny Mike shot me." Wiggins also said that Kenny Mike lived in Neptune. Wiggins was transported to the hospital where he later died from a gunshot wound to the chest with hemorrhage.

Officer Bailey searched the area surrounding the apartment building accompanied by a canine officer. He found a pair of gloves, a black mask, and saliva in the parking lot. He covered the saliva with a clean cup he obtained from a nearby White Castle. The crime scene unit subsequently collected all of this evidence.

In the meantime, the police transported Montanino to police headquarters, where she identified Kenny Mike from a photograph. She and Wiggins knew Kenny Mike because Wiggins sold marijuana to him in the past; however, she did not initially tell this to the police. Montanino gave the police three statements. In the first statement, she did not mention anything about drugs or how Wiggins knew Kenny Mike. When the police informed her of Wiggins's poor condition, she told them about hiding the marijuana and gave consent to search her car. During the search, the police found a duffel bag containing marijuana in the trunk. Upon learning that Wiggins died, Montanino told the police about Kenny Mike's relationship with Wiggins and where Kenny Mike lived.

Everett testified that defendant and Fitch came to his home the morning after the shooting. Defendant's face looked like "he did something," and Everett asked him what was wrong. Defendant said that "shit went bad" and "something bad had happened with Kenny." Everett believed defendant was referring to Aron and Kenny Mike because Aron was talking about robbing "the weed man" with the gun after he left Everett's home the night before. Defendant also told Everett that Kenny Mike was not wearing a mask; Kenny Mike knocked on Wiggins's door; Wiggins said Kenny Mike's name and opened the door; Kenny Mike got into a scuffle with Wiggins; a shot went off from the gun that was found in Everett's backyard; and Wiggins died "[w]hen they was trying to go in there[.]" Fitch told Everett the same things, and also said that "shit was crazy" when they went to rob Wiggins and Wiggins died. Neither defendant nor Fitch said who pulled the trigger.

Defendant, Aron, Kenny Mike, and Fitch were eventually arrested. Defendant told the police that he was in Farmingdale at the time of the shooting. He gave a DNA sample, which was tested and showed that the saliva found in the parking lot belonged to him. In addition, the police obtained cellphone records, which showed calls on the evening of the shooting between defendant and Aron, Aron and Kenny Mike, and Aron and Wiggins. The police also retrieved inculpatory text messages between Aron and Kenny Mike.

II.

The trial began on December 6, 2012. The judge preliminarily instructed the jurors that it would be improper for any outside influence to intrude upon their thinking, and they must report any outside influence or information to him immediately. The judge also instructed that the jurors' deliberations and verdict must be based solely on the evidence presented during the trial without outside influence.

On December 14, 2012, the mass shooting in Newtown, Connecticut occurred. On December 18, 2012, defense counsel asked the judge to question the jury as to whether, in light of the shooting, they could be fair and impartial and render a fair and impartial verdict. The judge noted that the Newtown incident was dissimilar from defendant's case; he had instructed the jury to report any outside influence, but no one did so; and a voir dire would merely highlight the situation. The judge indicated he would address the issue if it was presented by a juror.

Just prior to summation two days later, there was a threat made to the courthouse, which necessitated heightened security. Defense counsel did not request a jury voir dire; rather, he suggested that the trial resume a few weeks later in January 2013. The judge rejected the suggestion, and advised the jury about the threat and that the matter was under control. The judge later advised the jury that the matter was resolved and an individual was arrested.

Defendant argues in Point I of assigned counsel's brief that the judge erred in declining to voir dire the jury about the two incidents. We review the judge's decision regarding the Newtown incident for abuse of discretion. State v. R.D., 169 N.J. 551, 559-60 (2001). "[An] abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

Because defendant did not request a voir dire regarding the courthouse incident, we apply the plain error standard of review. R.D., supra, 169 N.J. at 563. We will reverse on the basis of an unchallenged error only if it was "clearly capable of producing an unjust result." State v. Macon, 57 N.J. 325, 337 (1971). 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. We discern no abuse of discretion or plain error here.

The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to trial by an impartial jury. R.D., supra, 169 N.J. at 557. Thus, a criminal defendant "is entitled to a jury that is free of outside influences and [that] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." Ibid.

"[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58. Accordingly, the court must "investigate and . . . determine whether the jurors are capable of fulfilling their duty in an impartial and unbiased manner." State v. McGuire, 419 N.J. Super. 88, 153 (App. Div.), certif. denied, 208 N.J. 335 (2011).

However, the Court has recognized that "the trial court is in the best position to determine whether the jury has been tainted." R.D., supra, 169 N.J. at 559. In making that determination, the trial court must "consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings." Ibid.

We find no basis to second-guess the trial court's handling of the jury issue. The two incidents were unrelated and dissimilar from this case, and no juror reported having been influenced by anything that would impinge his or her ability to be fair and impartial. It was not apparent that the jurors were exposed to extraneous information or outside influence that would have required the judge to voir dire the jury.

III.

Defendant contends in Point II of assigned counsel's brief that the trial judge erred in failing to sua sponte charge the statutory defense to felony murder, N.J.S.A. 2C:11-3(a)(3). Because defendant did not raise this issue at the trial, we review it for plain error. State v. Walker, 203 N.J. 73, 89 (2010) (citing R. 2:10-2). To warrant reversal, the error must be "clearly capable of producing an unjust result." Ibid. "The error must be considered in light of the entire charge and must be evaluated in light 'of the overall strength of the State's case.'" Id. at 90 (quoting State v. Chapland, 187 N.J. 275, 289 (2006).

N.J.S.A. 2C:11-3(a)(3) is an affirmative defense to felony murder. State v. Martin, 119 N.J. 2, 22 (1990). The statutory defense provides as follows

a. Except as provided in [N.J.S.A.] 2C:11-4, criminal homicide constitutes murder when

. . . .

(3) It is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism pursuant to [N.J.S.A. 2C:38-2], and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants; except that in any prosecution under this subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

These four prongs "focus on whether the accomplice undertook a homicidal risk or could have foreseen that the commission of the felony might result in death." Walker, supra, 203 N.J. at 84 (quoting Martin, supra, 119 N.J. at 22-23).

In order to amount to plain error, a defendant who fails to request a charge on a defense must demonstrate it was clearly indicated by the evidence. Id. at 87. The court is not required "to sift through the entire record in every trial to see if some combination of facts and inferences might rationally sustain a[n unrequested] charge." State v. Rivera, 205 N.J. 472, 490 (2011) (alteration in original). Instead, the need for the charge must "jump off" the proverbial page. State v. Denofa, 187 N.J. 24, 42 (2006). "Defendant ha[s] the burden to produce some evidence in support of each prong of the defense, irrespective of whether there was strong evidence to the contrary." Walker, supra, 203 N.J. at 87; see also State v. Smith, 322 N.J. Super. 385, 396-97 (App. Div.), certif. denied, 162 N.J. 489 (1999) (holding that the defendant must present some evidence supporting all four factors of N.J.S.A. 2C:11-3(a)(3)). When the defendant satisfies this obligation, the burden then shifts to the State to disprove the defense beyond a reasonable doubt. N.J.S.A. 2C:1-13(b)(1)-(2); see also Smith, supra, 322 N.J. Super. at 398.

Although defendant's trial theory was that he was not at the crime scene, there was some evidence to the contrary. Defendant's saliva was found near the crime scene, and Everett's testimony established that defendant was present at the crime scene when Wiggins was shot with the gun found in Everett's backyard. While there was evidence that Kenny Mike might have been the shooter, this only provided support for factors N.J.S.A. 2C:11-3(a)(3)(a) and (b). There was no evidence at all supporting factors N.J.S.A. 2C:11-3(a)(3)(c) and (d) -- that defendant had no reasonable ground to believe that Kenny Mike was armed with a weapon, and no reasonable ground to believe that Kenny Mike intended to engage in conduct likely to result in Wiggins's death or serious physical injury. Accordingly, the facts did not clearly indicate the appropriateness of charging the affirmative defense. Walker, supra, 203 N.J. at 78.

IV.

Defendant challenges his sentence in Point IV of assigned counsel's brief, arguing it was disparate from the sentences imposed on Aron and Kenny Mike.4 We disagree.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Because the sentencing code's goal is uniformity, an "otherwise sound and lawful sentence" will be invalid if it is different from a similarly situated co-defendant's sentence. State v. Roach, (Roach I) 146 N.J. 208, 232-33, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). As the Court explained,

the sentencing court must exercise a broader discretion to obviate excessive disparity. The trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity. Sentencing based on such added considerations will accommodate the basic discretion of a sentencing court to impose a just sentence on the individual defendant in accordance with the sentencing guidelines while fulfilling the court's responsibility to achieve uniform sentencing when that is possible.

[Id. at 233-34.]

When a comparison of a co-defendant's sentence reveals "grievous inequities," the greater sentence may be deemed excessive. State v. Roach, (Roach II) 167 N.J. 565, 570 (2001). However, a disparate sentence based solely on the reason that the defendants did not deserve similar sentences, even though the defendants were similar for sentencing purposes, is insufficient to justify disparate terms. Roach I, supra, 146 N.J. at 232-33. "[A] sentence of one defendant [is] not otherwise excessive . . . merely because a co-defendant's sentence is lighter." Id. at 232.

Defendant, Aron and Kenny Mike were tried separately before, and sentenced by, the same judge. Aron, who was the driver of the getaway car, was only found guilty of second-degree conspiracy to commit robbery and second-degree robbery, and sentenced to eight years subject to NERA. Thus, the judge correctly determined that Aron's situation was not identical or substantially similar to defendant's situation.

Kenny Mike was found guilty of the same charges as defendant, and sentenced to forty years subject to NERA. The judge found Kenny Mike's situation was not identical or substantially similar to defendant's situation for the following reasons

[I]n looking at who is who in this case, you have, [] Aron [], [Kenny Mike] sort of hatching this plan. . . . the gun was obtained [] at some point by [] Fitch. You have [Kenny Mike] is the one that goes to [Wiggins's apartment] . . . Goes up the stairs because [] [h]e's the one that knows [] Wiggins the best. [Kenny Mike] knocks on the door and he [] basically was going to be let into the apartment. [Kenny Mike] didn't have a mask on because they had to have the entrance. There was contact. There was cell phone messages, we're coming to buy the weed. That's how it happened.

So we have a pretty good idea that it was [] not [Kenny Mike] that was the shooter. We have a good idea it wasn't [Aron] because he was the driver. The State's contention is that it was [defendant] that was the shooter. It could have been [defendant]. It could have been [] Fitch. Those are the two things that the [c]ourt, it's the [c]ourt's opinion as to [] who was involved.

Consequently, the judge sentenced defendant to fifty years subject to NERA based on his greater level of participation in this case as the shooter. We are satisfied that the record presents an acceptable justification of defendant's sentence in light of the sentence imposed on Kenny Mike. In all other respects, we conclude the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.

Affirmed.

1 Referenced in the record also as Tahj Jaheed Pines.

2 The jury found defendant not guilty of first-degree conspiracy to commit robbery.

3 Aron Pines is defendant's brother. Because they share the same last name, we shall referred to Aron Pines by his first name.

4 Fitch's trial had not yet occurred at the time of defendant's sentencing.