STATE OF NEW JERSEY v. TIMOTHY A. HORNE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0448-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY A. HORNE, a/k/a TIMOTHY
ALLEN HORNE, NICE, and BABY DRE,
Defendant-Appellant.
Submitted March 5, 2018 – Decided May 24, 2018
Before Judges Messano and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment Nos.
11-07-1675, 11-08-1730, 14-03-0873 and
Accusation No. 12-02-0424.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rebecca Gindi, Assistant Deputy
Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
A jury convicted defendant Timothy A. Horne of second-degree
aggravated assault,
N.J.S.A. 2C:12-1b(1) (causing serious bodily
injury (SBI)); third-degree aggravated assault,
N.J.S.A. 2C:12-
1b(2) (causing bodily injury with a firearm); fourth-degree
aggravated assault,
N.J.S.A. 2C:12-1b(4) (knowingly pointing a
firearm at another with extreme indifference to the value of human
life); second-degree possession of a weapon for an unlawful
purpose,
N.J.S.A. 2C:39-4a; and second-degree unlawful possession
of a weapon,
N.J.S.A. 2C:39-5b. In a separate trial that
immediately followed, the same jury convicted defendant of second-
degree certain persons not to have weapons,
N.J.S.A. 2C:39-7b.1
After appropriate mergers, and after granting the State's
motion to impose an extended term, see
N.J.S.A. 2C:44-3a, the
judge sentenced defendant to a twenty-year term of imprisonment,
subject to an 85% period of parole ineligibility under the No
Early Release Act,
N.J.S.A. 2C:43-7.2, and a consecutive ten-year
term with five years of parole ineligibility on the certain persons
offense.
Before us, defendant raises the following arguments:
1
The jury acquitted defendant of first-degree attempted murder,
N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3, and the prosecutor dismissed
a charge of third-degree receiving stolen property,
N.J.S.A.
2C:20-7 A. 2 A-0448-15T2
POINT I
THE CONVICTIONS FOR SECOND-DEGREE AGGRAVATED
ASSAULT UNDER
N.J.S.A. 2C:12-1b(1) AND THIRD-
DEGREE AGGRAVATED ASSAULT UNDER
N.J.S.A.
2C:12-1b(2) MUST BE REVERSED BECAUSE THE COURT
FAILED TO CHARGE THE LESSER-INCLUDED OFFENSE
OF FOURTH-DEGREE RECKLESS AGGRAVATED ASSAULT
UNDER
N.J.S.A. 2C:12-1b(3). (NOT RAISED BELOW)
POINT II
BECAUSE POLICE CONTINUED TO QUESTION MR. HORNE
AFTER HE INVOKED HIS FIFTH AMENDMENT RIGHT TO
REMAIN SILENT, THE GUN FOUND AS A RESULT OF
HIS SUBSEQUENT STATEMENT SHOULD HAVE BEEN
SUPPRESSED. (NOT RAISED BELOW)
A. MR. HORNE'S AVOIDANCE OF THE
DETECTIVES' QUESTIONS COUPLED WITH
HIS REPEATED REQUEST THAT THE
DETECTIVES TALK TO J.R. INSTEAD OF
HIM WAS AN INVOCATION OF HIS FIFTH
AMENDMENT RIGHT TO REMAIN SILENT.
U.S. CONST., AMENDS. V, XIV.
B. ALTERNATIVELY, MR. HORNE'S
REQUEST TO MAKE A PHONE CALL TO
SOMEONE HE TRUSTED FOR ADVICE WAS AN
INVOCATION OF HIS FIFTH AMENDMENT
RIGHT TO REMAIN SILENT. U.S.
CONST., AMENDS V, XIV.
C. THE IMPROPER ADMISSION OF THE GUN
AT TRIAL AMOUNTED TO PLAIN ERROR.
POINT III
THE SENTENCING COURT MADE SEVERAL ERRORS
REQUIRING MR. HORNE'S SENTENCE BE VACATED AND
REMANDED FOR IMPOSITION OF A LOWER SENTENCE.
(NOT RAISED BELOW)
A. MR. HORNE'S SENTENCE MUST BE
VACATED AND REMANDED BECAUSE THE
3 A-0448-15T2
SENTENCING COURT ENGAGED IN
IMPROPER DOUBLE COUNTING AS THE
BASIS FOR BOTH IMPOSING AN EXTENDED
TERM AND FINDING AGGRAVATED FACTORS
AND ALSO FAILED TO INCLUDE A
STATEMENT OF REASONS FOR
AGGRAVATING FACTORS SIX AND NINE.
B. ALTERNATIVELY, MR. HORNE'S
SENTENCE MUST BE VACATED AND
REMANDED BECAUSE THE SENTENCING
COURT FAILED TO FIND MITIGATING
FACTORS ELEVEN AND TWELVE WHICH ARE
CLEARLY INDICATED IN THE RECORD. AS
A RESULT, THE COURT IMPROPERLY
WEIGHED AND BALANCED THE
AGGRAVATING AND MITIGATING FACTORS.
C. THE TRIAL COURT ERRED BY FAILING
TO PROVIDE REASONS FOR IMPOSING THE
MAXIMUM SENTENCE ON THE CERTAIN
PERSONS, AND BY RUNNING THE CERTAIN
PERSONS AND AGGRAVATED ASSAULT
SENTENCES CONSECUTIVELY.
In appellant's pro se supplemental brief, he provided
additional points for our consideration.
POINT I
APPELLANT'S RIGHT TO REMAIN SILENT WAS NOT
"SCRUPULOUSLY HONORED" DURING HIS CUSTODIAL
INTERROGATION AND THE LOWER TRIAL COURT ERRED
I[N] PERMITTING IT INTO THE STATE'S CASE IN-
CHIEF AND THE DEFENSE WAS INEFFECTIVE FOR NOT
RAISING THE FACT TO THE LOWER TRIAL COURT.
(NOT RAISED BELOW)
POINT II
[DEFENSE COUNSEL] WAS WOEFULLY INEFFECTIVE IN
THE RULE 104(c) HEARING FOR, INTER ALIA,
FAILING TO ADVANCE "CLEARLY ESTABLISHED"
4 A-0448-15T2
PRECEDENT IN DEFENSE OF HIS CLIENT. (NOT
RAISED BELOW).
POINT III
THE LOWER TRIAL COURT ERRED BY NOT PERMITTING
[DEENSE COUNSEL] TO MOVE TO SUPPRESS THE .357
REVOLVER NUNC PRO TUNC. (NOT RAISED BELOW)
POINT IV
APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL JURY
WAS VIOLATED PURSUANT TO BATSON AND GILMORE
BY THE STATE'S JURY SELECTIONS AND THE COURT'S
RESPONSE THERETO. (NOT RAISED BELOW)
POINT V
THE LOWER TRIAL COURT ERRED BY REFUSING TO
"CHARGE THE JURY AS TO IGNORANCE OR MISTAKE"
OF FACT AS IT WAS CLEARLY IN THE RECORD.
(PARTIALLY RAISED BELOW)
POINT VI
[DEFENSE COUNSEL] WAS INEFFECTIVE FOR NOT
ADVANCING; NOR DEVELOPING SELF DEFENSE AS A
CLAIM FOR HIS CLIENT. (PARTIALLY RAISED BELOW)
POINT VII
STRICKLAND AND BRADY WERE VIOLATED IN
APPELLANT'S CASE WHERE JESSICA'S DRESS WAS NOT
TESTED FOR GSR BY THE STATE NOR PURSUED BY
[DEFENSE COUNSEL] & WHERE THE STATE WITHHELD
IN EXCESS OF "3500 PAGES" OF DISCOVERY AND THE
DEFENSE FAILED TO ADEQUATELY PURSUE AS MUCH.
(NOT RAISED BELOW)
POINT VIII
DUE TO THE CUMULATIVE IMPACT OF ALL THE TRIAL
ERRORS, APPELLANT WAS DEPRIVED A FAIR TRIAL.
(NOT RAISED BELOW)
5 A-0448-15T2
Having considered these contentions in light of the record and
applicable legal standards, we affirm defendant's convictions and
the sentences imposed on all but count eight, the certain person
conviction. We remand to the Law Division for resentencing on
that count.
I.
We briefly summarize the State's evidence at trial to place
defendant's arguments in context.
On August 28, 2013, defendant was living with his girlfriend,
J.R., J.R.'s sister, Jen.R., and her four-year-old son.2 That
morning, as she readied for work in the bedroom, J.R. heard
defendant "fumbling with a gun." As she turned toward defendant,
she saw him pointing the gun at her. With only the bed between
them, defendant shot J.R.
Jen.R. heard the shot, exited her bedroom and saw J.R.
bleeding and searching for her keys. Jen.R. found them, and
defendant grabbed them from her hand. Defendant gathered his
things in a small athletic bag, before unlocking the gated front
door. He and J.R. entered J.R.'s car, but defendant refused to
let Jen.R. enter the car before driving to nearby Cooper Hospital.
2
We use initials to maintain the confidentiality of those
involved.
6 A-0448-15T2
J.R. claimed defendant drove around the hospital three times
before leaving her at the entrance door and driving away. Jen.R.
testified that she saw defendant drive back past the house and was
concerned he was coming back to shoot her. But, defendant did not
stop. J.R. was admitted to the hospital, underwent surgery that
required the removal of her gall bladder and part of her liver,
and remained hospitalized for three weeks.
Camden County Police Department Lieutenant Jeff Frampton
responded to the hospital and viewed surveillance tape showing the
car that dropped off J.R. As he left, Frampton passed a similar
looking car heading in the opposite direction toward the hospital.
Frampton executed a U-turn and stopped the car, which defendant
was driving. Frampton removed defendant and his passenger from
the car and transported them to headquarters for questioning.
Detective Ryan Bell of the Camden County Police Department
and other officers interrogated defendant, and the jury saw a
redacted video recording of the statement. After being advised
of his Miranda3 rights, defendant initially told detectives to
speak to J.R. first. At some point thereafter, defendant told
detectives he wanted to speak to a "friend," FBI Agent Vito
Roselli, for whom defendant was a confidential informant. In the
3
Miranda v. Arizona,
384 U.S. 436 (1966).
7 A-0448-15T2
midst of defendant's interrogation, the detectives reached Roselli
by phone, and defendant spoke to the agent. Defendant then went
on to explain the shooting was an accident, and that he and J.R.
were "tussling" over the gun as she questioned him about being a
"snitch."
Roselli arrived at the police station and took custody of
defendant. Defendant told Roselli the gun was in the trunk of
defendant's car, which was parked in a motel parking lot in Cherry
Hill. Together, they drove to the motel, where Roselli recovered
the weapon, a .357 magnum.
Roselli said defendant asked him if he could "get [defendant]
out of the case, basically have the prosecutor drop the gun charge
or whatever charge they were hitting him with." Roselli refused,
but told defendant he would let the prosecutor know the extent of
defendant's "cooperation up to that point." On cross-examination,
Roselli confirmed that approximately one week before the shooting,
defendant had text-messaged him with concerns that J.R. had looked
at his phone. Roselli acknowledged that defendant had supplied
him with information that may have implicated J.R.'s family members
or acquaintances in criminal activity. Roselli agreed that
defendant would be in danger if those individuals knew he was
providing information to the FBI.
8 A-0448-15T2
The State's ballistic expert testified that the amount of
force required to pull the trigger on the .357 magnum was
substantial, thereby implying the shooting was not accidental.
Defendant elected not to testify.
II.
The judge conducted a pretrial hearing pursuant to N.J.R.E.
104(c) to determine the admissibility of defendant's recorded
statement and verbal statements to Roselli. Bell and Roselli
testified at the hearing, and the judge had the opportunity to
view the entire video recording of the interrogation, which was
in two parts.
Bell read defendant his Miranda rights from a card, and
defendant acknowledged he understood. As noted, defendant first
told detectives they should speak to J.R., but the detectives said
she was still in surgery. Defendant never invoked his right to
remain silent, nor did he ask for an attorney. In response to
defendant's request, the detectives tried to reach Roselli by
phone, but were unsuccessful and left a voicemail. They ultimately
did speak to Roselli, who in turn talked to defendant by phone.
After a short break, the detectives again read defendant his
Miranda rights, and defendant again acknowledged his
understanding. Thereafter, defendant answered the detectives'
questions, telling them that the shooting was an accident. When
9 A-0448-15T2
Roselli picked up defendant, he did not re-Mirandize him, nor did
he interrogate defendant about the shooting.
After properly stating the governing legal principles, the
judge noted defendant's statement was not "a classic confession,"
and "when it became obvious to [the detectives] that [defendant]
wanted to speak to [his] FBI handler before he would have any
further discussions[,] they took a break to reach the agent, and
in fact did reach the agent." The judge found the detectives
specifically asked if defendant was requesting a lawyer, and
defendant "indicated he was not." The judge also found Bell was
a credible witness, and defendant admitted his prior involvement
with and knowledge of the criminal justice system. In short, the
judge concluded defendant waived his Miranda rights and provided
a voluntary statement to the detectives.
The judge also concluded that Roselli did not have to reissue
Miranda warnings to defendant, and the agent was "circumspect" in
discussing the case with defendant. The judge found it was
defendant's voluntary "design" to have Roselli retrieve the
weapon.
In Point II, defendant argues the detectives continued to
question him after he implicitly invoked his right to remain silent
by not answering their questions, directing they speak to J.R.
first, and by asking to speak to Roselli. Defendant argues the
10 A-0448-15T2
seizure of the gun was the "fruit of the poisonous tree" resulting
from this violation of his Fifth Amendment rights, and, therefore,
the judge should have suppressed the gun and not admitted it into
evidence.
Defendant never argued before the trial court that the seizure
of the gun resulted from a constitutional violation. We could
therefore refuse to consider the argument now. State v. Witt,
223 N.J. 409, 419 (2015) (quoting State v. Robinson,
200 N.J. 1, 20
(2009) ("For sound jurisprudential reasons, with few exceptions,
'our appellate courts will decline to consider questions or issues
not properly presented to the trial court when an opportunity for
such a presentation is available.'"). Nevertheless, for the sake
of completeness, we address the issues surrounding the
admissibility of defendant's statements.
"Appellate courts reviewing a grant or denial of a motion to
suppress must defer to the factual findings of the trial court so
long as those findings are supported by sufficient evidence in the
record." State v. Hubbard,
222 N.J. 249, 262, (2015) (citing
State v. Gamble,
218 N.J. 412, 424 (2014); State v. Elders,
192 N.J. 224, 243 (2007)). However, we do not defer to the trial
court's legal conclusions, which we review de novo. Id. at 263.
Even when Miranda warnings are properly administered, "the
State bears the burden of proving beyond a reasonable doubt that
11 A-0448-15T2
a defendant's confession is voluntary and not resultant from
actions by law enforcement officers that overbore the will of a
defendant." Id. at 267 (citing State v. Hreha,
217 N.J. 368, 383
(2014); State v. Galloway,
133 N.J. 631, 654 (1993)). "Determining
whether the State has met that burden requires a court to assess
'the totality of the circumstances, including both the
characteristics of the defendant and the nature of the
interrogation.'" Hreha,
217 N.J. at 383 (quoting Galloway,
133 N.J. at 654).
When a suspect unambiguously asserts his right to remain
silent, all questioning must stop. State v. S.S.,
229 N.J. 360,
382 (2017). Our state law privilege extends greater protection:
"a request, however ambiguous, to terminate questioning . . . must
be diligently honored." Ibid. (quoting State v. Bey (Bey II),
112 N.J. 123, 142 (1988)). "[I]f the police are uncertain whether a
suspect has invoked his right to remain silent, two alternatives
are presented: (1) terminate the interrogation or (2) ask only
those questions necessary to clarify whether the defendant
intended to invoke his right to silence." Id. at 383 (citation
omitted). In making the threshold determination of whether a
suspect has invoked his or her right to counsel, the trial court
employs "a totality of the circumstances approach that focuses on
12 A-0448-15T2
the reasonable interpretation of defendant's words and behaviors."
State v. Diaz-Bridges,
208 N.J. 544, 564 (2012).
In State v. Johnson,
120 N.J. 263 (1990), the Court held that
a suspect who has "'nothing else to say,' or who '[does] not want
to talk about [the crime]'" has invoked the right to remain silent.
Id. at 281 (citation omitted) (alterations in original). An
unwillingness to respond, therefore, may be considered an
invocation of the right to remain silent. Id. at 285.
Here, however, immediately after acknowledging he understood
his rights, defendant affirmatively told Bell that he wanted to
waive those rights and give a statement. Defendant never
maintained long periods of silence in the face of questioning, nor
did he ever say he no longer wished to speak to the detectives.
Under the totality of the circumstances presented, telling the
detectives to speak to J.R. first was not an ambiguous invocation
of the right to remain silent.
We acknowledge that under certain circumstances, a suspect's
request to speak to a friend or family member before answering any
questions is an implicit invocation of the privilege. See, e.g.,
State v. Maltese,
222 N.J. 525, 534-37, 546 (2015) (the defendant's
repeated request to speak to his uncle before answering any
questions was invocation of his right to remain silent); State v.
Harvey,
121 N.J. 407, 415-16, 419-20 (1990) (after three days of
13 A-0448-15T2
interrogation, the defendant's request to speak to his father
compelled the reissuance of Miranda warnings afterwards and prior
to further interrogation).
Here, however, defendant never indicated an unwillingness to
speak to the detectives unless and until he spoke to Roselli. See
State v. Roman,
382 N.J. Super. 44, 65-66 (App. Div. 2005) (the
defendant's request to speak to his parents was not an invocation
of his right to remain silent because the defendant "never gave
the police any indication that he wanted to stop talking"). As
borne out by defendant's eventual phone conversation with the
agent, he was not seeking Roselli's advice. See, e.g., State v.
Brooks,
309 N.J. Super. 43, 52-57 (App. Div. 1998) (the defendant
did not assert his right to remain silent by asking to speak to
his mother because he was not seeking her advice); see also Diaz-
Bridges,
208 N.J. at 569-570 (the defendant's request to speak to
his mother was not an invocation of his right to remain silent
because he continued to speak with detectives and only wanted to
speak with his mother for "the chance to tell her first").
In short, the judge properly admitted defendant's
statements.4
4
In his supplemental pro se brief, defendant asserts trial counsel
rendered ineffective assistance during the N.J.R.E. 104(c)
(footnote continued on next page)
14 A-0448-15T2
III.
The indictment charged defendant with three different types
of aggravated assault:
N.J.S.A. 2C:12-1b(1) (count two) "causes
[serious bodily] injury purposely or knowingly
or under circumstances manifesting extreme
indifference to the value of human life
recklessly");
N.J.S.A. 2C:12-1b(2) (count three)
("purposely or knowingly causes bodily injury
to another with a deadly weapon");
N.J.S.A. 2C:12-1b(4) (count four) ("Knowingly
under circumstances manifesting extreme
indifference to the value of human life points
a firearm . . . at or in the direction of
another").
[(Emphasis added).]
As lesser included offenses of count two, the judge provided
instructions on aggravated assault,
N.J.S.A. 2C:12-1b(7)
("purposely or knowingly or, under circumstances manifesting
extreme indifference to the value of human life recklessly causes
. . . significant bodily injury") (emphasis added); and simple
assault,
N.J.S.A. 2C:12-1a(1) ("purposely, knowingly or recklessly
causes bodily injury to another") (emphasis added). He also gave
(footnote continued)
hearing, by failing to specifically move to suppress the gun and
by failing to advance a self-defense claim at trial. "We decline
to address th[ose] argument[s] because [they are] better suited
for review on post-conviction relief and not direct appeal." State
v. Mohammed,
226 N.J. 71, 81 n.5 (2016).
15 A-0448-15T2
instructions on simple assault,
N.J.S.A. 2C:12-1a(2) ("Negligently
causes bodily injury with a deadly weapon"), as a lesser included
offense of count four. Defendant did not request any other
instructions nor object to those given.
Before us, defendant argues the judge committed plain error
by failing to sua sponte instruct the jury on fourth-degree
aggravated assault,
N.J.S.A. 2C:12-1b(3) ("Recklessly causes
bodily injury to another with a deadly weapon") (emphasis added),
as a lesser included offense of SBI aggravated assault. Defendant
contends the jury could have convicted him of b(3) aggravated
assault and acquitted him of SBI aggravated assault because the
jury could have found he only acted recklessly, and ordinary
reckless conduct is a lesser level of culpability than reckless
conduct manifesting extreme indifference to the value of human
life. State v. Farrell,
250 N.J. Super. 386, 390 (App. Div. 1991);
N.J.S.A. 2C:1-8d(3).
"[W]hether an included offense charge is appropriate requires
(1) that the requested charge satisfy the definition of an included
offense set forth in
N.J.S.A. 2C:1-8d, and (2) that there be a
rational basis in the evidence to support a charge on that included
offense." State v. Thomas,
187 N.J. 119, 131 (2006).
"[W]hen . . . it is the defendant who requests a lesser-included
offense charge, 'whether the lesser offense is strictly "included"
16 A-0448-15T2
in the greater offense . . . is less important . . . than whether
the evidence presents a rational basis on which the jury could
acquit the defendant of the greater charge and convict the
defendant of the lesser.'" State v. Cassady,
198 N.J. 165, 178
(2009) (quoting State v. Brent,
137 N.J. 107, 117 (1994)).
"In the absence of a request or an objection, we apply a
higher standard, requiring the unrequested charge to be 'clearly
indicated' from the record." State v. Alexander, ___ N.J. ___
(2018) (slip op. at 12). Under these circumstances, "the evidence
supporting a lesser-included charge must 'jump[] off the page' to
trigger a trial court's duty to sua sponte instruct a jury on that
charge." Id. at 13 (quoting State v. Denofa,
187 N.J. 24, 42
(2006)).5
Whether the assaults defined in subsections b(1) through (5)
are five distinct types of aggravated assault, or whether those
defined in subsections b(2) through b(4) are lesser included
offenses of b(1), has been the subject of sometimes confusing
5
In contrast, a court is not required to sua sponte provide
instructions on a lesser-related offense, i.e., "those that 'share
a common factual ground, but not a commonality in statutory
elements, with the crimes charged in the indictment.'" Id. at 14
(quoting Thomas,
187 N.J. at 132). "[A] trial court may instruct
the jury on a related offense only when 'the defendant requests
or consents to the related offense charge, and there is a rational
basis in the evidence to sustain the related offense.'" Id. at
15 (quoting Thomas,
187 N.J. at 133).
17 A-0448-15T2
results. See Cannel, New Jersey Criminal Code Annotated, cmt. 6
on
N.J.S.A. 2C:12-1 (2017). In State v. Sloane,
111 N.J. 293,
303-04 (1988), the Court held that, when requested by a defendant
and even though they require the use of a weapon, aggravated
assaults requiring less than serious bodily injury may be charged
as lesser-included offenses of
N.J.S.A. 2C:12-1b(1). See also
State v. Villar,
150 N.J. 503, 516-17 (1997) (explaining Sloane
by stating, "when a defendant is indicted for second-degree
aggravated assault and the proofs show commission of the assault
with a deadly weapon and the evidence requires that other lesser-
included assault charges be given, the court must instruct the
jury that third-degree aggravated assault with a deadly weapon is
a lesser-included offense of second-degree aggravated assault,
whether or not committed with a weapon").
Here, defendant never requested a charge as to subsection
b(3). Therefore, the failure to provide the charge was not error
unless evidence supporting the charge "jumped off the page." We
do not think it did.
Even though the judge instructed the jury on b(2) aggravated
assault, and simple assault under subsections a(1) and (2), all
of which have "bodily injury" as an element, it was not "rationally
debatable," Sloane,
111 N.J. at 294, that J.R. only suffered bodily
injury. See
N.J.S.A. 2C:11-1a ("'Bodily injury' means physical
18 A-0448-15T2
pain, illness or any impairment of physical condition."). In
returning a guilty verdict on count three (b(2) aggravated
assault), the jury concluded beyond a reasonable doubt that
defendant acted "purposely or knowingly," and that he used a
"deadly weapon," defined as one "capable of producing death or
serious bodily injury,"
N.J.S.A. 2C:11-1c. The need to provide
instructions on b(2) aggravated assault at all resulted from the
prosecutor's unwise overcharging in the indictment. Under all the
circumstances, a charge on b(3) aggravated assault was not "clearly
indicated."
Even if we were to conclude the judge erred by not including
instructions on b(3) aggravated assault, any omission was not
plain error. The Court has said that
[i]n the context of a jury charge, plain error
requires demonstration of "[l]egal
impropriety in the charge prejudicially
affecting the substantial rights of the
defendant sufficiently grievous to justify
notice by the reviewing court and to convince
the court that of itself the error possessed
a clear capacity to bring about an unjust
result."
[State v. Burns,
192 N.J. 312, 341 (2007)
(second alteration in original) (emphasis
added) (quoting State v. Jordan,
147 N.J. 409,
422 (1997)).]
The allegation of error must be assessed in light of "the totality
of the entire charge, not in isolation." State v. Chapland, 187
19 A-0448-15T
2 N.J. 275, 289 (2006) (citing State v. DiFrisco,
137 N.J. 434, 491
(1994)).
In this case, the jury was given the opportunity to consider
whether defendant engaged in simple "reckless" conduct when the
judge provided instructions on simple assault,
N.J.S.A. 2C:12-
1a(1), as a lesser included offense under count two, SBI aggravated
assault. The jury rejected that alternative, instead concluding
defendant acted with a level of culpability greater than simple
reckless conduct. In short, even if the judge should have sua
sponte provided instructions for b(3) aggravated assault, his
failure to do so was not plain error requiring reversal.
IV.
We address the points raised in defendant's pro se
supplemental brief before turning to the sentencing arguments.
After the prosecutor used her ninth challenge to remove a
second African-American juror, defense counsel objected and moved
for a new panel. The judge heard the prosecutor's reasons at
sidebar, denied defendant's request and ordered the prosecutor to
come to sidebar prior to exercising any more challenges to minority
jurors. Defendant now argues the prosecutor used her peremptory
challenges in a discriminatory fashion. We disagree.
The United States and New Jersey Constitutions prohibit the
prosecution and defense counsel from exercising peremptory
20 A-0448-15T2
challenges of jurors on the basis of race. Batson v. Kentucky,
476 U.S. 79 (1986); State v. Gilmore,
103 N.J. 508, 522-23 (1986).
The trial judge must engage in a three-stage, burden-shifting
analysis. State v. Osorio,
199 N.J. 486, 492 (2009). We will not
disturb "a trial court's ruling on the issue of discriminatory
intent . . . unless it is clearly erroneous." State v. Thompson,
224 N.J. 324, 344 (2016) (quoting Snyder v. Louisiana,
552 U.S. 472, 477 (2008)).
Here, the trial judge evidenced a commendable sensitivity
during the jury selection process and reacted in compliance with
our jurisprudence. We find no reason to conclude otherwise.
At trial, defense counsel urged the judge to charge mistake
of fact,
N.J.S.A. 2C:2-4(a), contending the jury could find
defendant mistakenly believed the gun was not loaded. The
prosecutor objected, noting there was no evidence, even in
defendant's statement to detectives, supporting that claim. The
judge agreed and refused to give the charge.
Defendant now argues the judge should have charged mistake,
see Model Jury Charge (Criminal), "Ignorance or Mistake" (2007),
but he fails to assert what mistake of fact or law was supported
by the evidence at trial, arguing only the shooting was accidental.
The argument warrants no further discussion in a written opinion,
21 A-0448-15T2
as do the remaining arguments defendant raises in his pro se
supplemental brief. R. 2:11-3(e)(2).
V.
Defendant posits several arguments regarding his sentence.
He contends the judge: improperly "double counted" by using
defendant's prior criminal history to impose an extended term and
to justify the maximum sentence; failed to state why aggravating
factors six and nine applied and failed to apply mitigating factors
eleven and twelve, resulting in an improper balancing of sentencing
factors; and failed to explain why he imposed a consecutive,
maximum sentence on the certain persons conviction. We largely
disagree and affirm the sentence, with the exception of the
sentence imposed on count eight, the certain persons conviction.
We begin by recognizing "[a]ppellate review of sentencing
is deferential, and appellate courts are cautioned not to
substitute their judgment for those of our sentencing courts."
State v. Case,
220 N.J. 49, 65 (2014) (citing State v. Lawless,
214 N.J. 594, 606 (2013)). Generally, we only 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."
22 A-0448-15T2
[State v. Fuentes,
217 N.J. 57, 70 (2014)
(quoting State v. Roth,
95 N.J. 334, 364-65,
(1984)).]
The judge granted the State's motion to impose an extended
term because defendant was a persistent offender. See
N.J.S.A.
2C:44-3(a) (a person, at least twenty-one years old, "who has been
previously convicted on at least two separate occasions of two
crimes, committed at different times, when he was at least 18 . . .
if the latest . . . is within 10 years of the date of the crime
for which the defendant is being sentenced"). Defense counsel
acknowledge defendant was eligible for an extended term.
In State v. Pierce,
188 N.J. 155 (2006), the Court provided
guidance to trial judges considering such motions. After
determining a defendant is eligible for an extended term, the
judge must then "weigh the aggravating and mitigating
circumstances to determine the base term of the extended sentence."
Id. at 164 (quoting State v. Dunbar,
108 N.J. 80, 89 (1987). The
available sentence range "starts at the minimum of the ordinary-
term range and ends at the maximum of the extended-term range."
Id. at 169.
Here, the judge found aggravating sentencing factors three,
six and nine.
N.J.S.A. 2C:44-1a(3) (the risk of re-offense); a(6)
(the extent and seriousness of defendant's prior record); and a(9)
(the need to deter). Although tersely stated, the judge explained
23 A-0448-15T2
his reasons for these findings beyond defendant's prior criminal
record. The judge also explained his reason for rejecting
mitigating factors eleven and twelve. N.J.S.A. 2C:44-1b(11)
(defendant's imprisonment would work a hardship for his family);
b(12) (defendant's cooperation with law enforcement). As to the
latter, the judge explained that defendant's cooperation agreement
with the FBI forbade him from engaging in any criminal conduct.
The judge clearly explained his reason for imposing a
consecutive sentence on the certain persons conviction by
considering the factors set out by the Court in State v. Yarbough,
100 N.J. 627, 643-44 (1985), and we find no mistaken exercise of
discretion in this regard. However, defendant correctly notes
that the judge never explained why he was imposing the maximum
term of ten years. See State v. Miller,
108 N.J. 112, 122 (1987)
("Where the offenses are closely related, it would ordinarily be
inappropriate to sentence a defendant to the maximum term for each
offense and also require that those sentences be served
consecutively, especially where the second offense did not pose
an additional risk to the victim.").
We recognize the judge was required to impose a mandatory
minimum term of five years on the certain persons count.
N.J.S.A.
2C:39-7b. However, he was not compelled to impose a maximum,
consecutive sentence of ten years after imposing the maximum
24 A-0448-15T2
extended term sentence on the other counts. Without the benefit
of any explanation by the judge, we reluctantly must remand the
matter for resentencing on the certain persons conviction, count
eight of the indictment. As the Court more recently said, "we
adhere to the cautioning in Miller . . . against the imposition
of multiple consecutive maximum sentences unless circumstances
justifying such an extraordinary overall sentence are fully
explicated on the record." State v. Randolph,
210 N.J. 330, 354
(2012).
Affirmed in part; the sentence on count eight is vacated and
the matter is remanded for resentencing on that count. See ibid.
(advising the court must conduct "an up-to-date viewing of
defendant at the time of resentencing").
25 A-0448-15T2
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