Opinion
DOCKET NO. A-1209-12T2
08-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DASHAND D. CHASE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 10-01-0139, 11-03-0681, and 12-03-0734. Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dashand D. Chase was tried with co-defendant Tony L. Burnham. Defendant appeals from his judgments of conviction for robbery, witness tampering, and related charges. We affirm.
I.
We summarize the evidence at the joint trial. On August 4, 2009, Barbara Parks arrived at Bally's Casino in Atlantic City to attend a training seminar. At 8:42 a.m., she parked her car in the parking garage. She got out of her car, holding her briefcase, pocketbook, and cellphone. She was approached by a man wearing a black ski mask and a dark-colored hooded sweatshirt. He told her to get back in her car. He was joined by a second man (defendant), who was taller and with a darker complexion, and also wearing a black ski mask and a dark-colored hooded sweatshirt. Parks got back in her car, but kept screaming. Both men told her to "shut the fuck up." The second man pointed a gun in Parks' face. The first man punched her in the jaw, and took her briefcase, cellphone, and pocketbook.
Both men fled in a gray Honda while Parks ran through the garage screaming and covered in blood. A Bally's patron saw Parks running and the Honda speeding away. Surveillance cameras videoed defendant and co-defendant Tony L. Burnham earlier that morning leaving the Honda, entering the casino, and returning to the Honda. The videos showed the Honda driving at 8:37 a.m. to the level of the garage where Parks was robbed, leaving that level while Parks was fleeing at 8:45 a.m., and immediately exiting the garage. The video revealed the Honda's license plate number.
Based on that information, the police were able to determine the Honda was driven by Brandy Wicks. In Wicks's statement to the police, she said the two men were "Pop," whom she identified as defendant, and "Ty," whose identity she claimed she did not know. At trial, Wicks identified "Ty" as Burnham, and testified as follows. She drove the Honda to Bally's with defendant, Burnham, Ikeeda Drain, and another individual. After Wicks parked in the garage, defendant and Burnham got out of the Honda and went into the casino. They later returned to the Honda, and defendant had Wicks drive up a couple of floors. Defendant and Burnham again got out of the Honda. When they returned, Wicks drove the group out of the garage in the Honda.
The police located the Honda in Woodbury. In its trunk, officers recovered two black ski masks, each one in a dark-colored hooded sweatshirt containing an imitation handgun. Parks identified those items as identical or similar to those used in the robbery. On one black ski mask, defendant was found to be the source of the major DNA profile, and Burnham was a possible contributor. Burnham was the sole source of DNA on the other black ski mask. Defendant was a possible contributor of DNA on one of the hooded sweatshirts, and Burnham on the other.
Defendant was arrested and incarcerated in the Atlantic County jail. On January 14, 2010, the grand jury issued an indictment (the "robbery indictment") charging defendant and Burnham with first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, 2C:15-1; first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree robbery, N.J.S.A. 2C:15-1; and fourth-degree possession of an imitation firearm for unlawful purposes, N.J.S.A. 2C:39-4(e).
The robbery indictment also charged Wicks and Drain with second-degree hindering the apprehension of defendant and Burnham, but that charge was dismissed before trial.
In July 2010, Parks received a letter from an unfamiliar address. The letter stated in pertinent part:
"[L]isten lady, I know you don't know me. Trust me I know you. You and your husband pass my path every day. Remember that day in August when your life was in danger? Oh, I thought you would. I get all ya info off the net. You better no[t] show up in that courtroom and testify . . . . You'll never catch us . . . . I'll eat everybody in the house ya call home. Ya live at [Parks' address]. I'm on your ass, bitch. I swore on my hood you fuckin' kill to function fuckin' kill everybody involved[,] in which case, bitch, I promise I will get you and what means the most to you. Kids and all. I do this shit. . . . I got your stuff and your pocketbook still. So . . . disappear, bitch. Don't show up in Court or talk to
the police about shit or your family and friends gonna suffer I promise. . . . A few dollars not worth you and your family life. I don't want to kill ya, but I will. You just pull up in the wrong spot at the wrong time. . . .
Darnell Dumpson testified at trial that defendant gave him a draft of this letter and asked him to rewrite it in his own handwriting while both were incarcerated at the Atlantic County jail. Dumpson wrote the letter in return for defendant's help. In January 2011, defendant told Dumpson to sign an enclosed affidavit and to say that "Burnham, somebody wrote the [draft] letter. Don't say it's me. Tell the people that you don't remember what happened."
At trial, defendant called another jail inmate who testified Dumpson wrote the threatening letter to Parks to retaliate against defendant for beating up Dumpson.
In February 2011, Parks received another letter, signed by defendant and bearing defendant's return address at the Atlantic County jail. Defendant claimed to have been falsely accused of robbing Parks in 2009. Defendant said he would "have my family send you money" and "whatever you need" to "solve this matter." He said he would give "the money back and I need for you to give my attorney a taped statement saying you don't want to proceed with the prosecution in the matter and they will drop all charges."
In March 2011, defendant sent a letter to Burnham's attorney claiming Parks was "really a criminal" who was lying to the police and court, and framing and blackmailing him. He said that Parks was a cocaine addict, that he sold her cocaine, and that she had a sexual relationship with him. He asserted Parks asked him to murder her husband in return for some of the husband's life insurance money. Defendant claimed that he met Parks in Bally's parking garage so he could sell her cocaine, that she complained about the cocaine's quality, and that she then started screaming and falsely accusing defendant of robbery with a mask she had earlier seen in his car. He also alleged Parks threatened to give the police tips on where he stashed counterfeit money.
In December 2012 and January 2013, Quinn Boyd, who was incarcerated with defendant at the Atlantic County jail, sent letters to the prosecutor's office claiming that defendant was innocent and that Boyd committed the robbery at Bally's. Shortly after the letters were sent, Boyd gave taped statements to the police saying that defendant offered him about $14,000 to write the letters, and that defendant threatened to kill Boyd's mother if he did not write letters to exonerate him. Boyd then testified at trial that his taped statements were false and that he had written the letters voluntarily.
A second indictment charged defendant with first-degree witness tampering for his July 2010 letter threatening force to get Parks to withhold testimony and information about the robbery, N.J.S.A. 2C:2 8-5(a); second-degree witness tampering for offering Dumpson a benefit to inform falsely, N.J.S.A. 2C:28-5(d); and second-degree witness tampering for his February 2011 letter offering Parks a benefit in consideration of her withholding testimony and information, N.J.S.A. 2C:28-5(d). A third indictment charged defendant with first-degree witness tampering for threatening force to induce Boyd to testify and inform falsely, N.J.S.A. 2C:28-5(a); and second-degree witness tampering for offering Boyd a benefit to inform falsely, N.J.S.A. 2C:28-5(d).
The second indictment also charged Dumpson and defendant with second-degree conspiracy to commit witness tampering, but Dumpson pled guilty.
After seven days of trial before Judge Bernard E. DeLury, the jury was unable to reach a verdict on the charges against Burnham, or on the charge that Burnham and defendant conspired to commit robbery. The jury convicted defendant on all other charges in the three indictments. Judge DeLury sentenced defendant in judgments of conviction dated November 14 and 16, 2012. Defendant appeals his judgments of conviction, arguing:
In a second trial, Burnham was convicted of second-degree conspiracy to commit armed robbery, and two counts of second-degree robbery. We are simultaneously affirming his judgment of conviction in State v. Burnham, No. A-0047-13 (App. Div. Aug. 14, 2015).
POINT I - SINCE THE JOINDER OF BOTH CO-DEFENDANT AND THE WITNESS TAMPERING CHARGES AGAINST DEFENDANT INTO ONE TRIAL WAS MORE PREJUDICIAL THAN PROBATIVE, DEFENDANT'S SEVERANCE MOTION SHOULD HAVE BEEN GRANTED.
POINT II - ASSUMING PROPER JOINDER OF THE DEFENDANTS AND MULTIPLE TAMPERING CHARGES, THE ABSENCE OF ANY LIMITING INSTRUCTION MANDATES THE REVERSAL OF DEFENDANT'S CONVICTIONS. (Not Raised Below).
POINT III - THE ABSENCE OF AN INSTRUCTION THAT THE JURY MAY NOT MAKE ANY ADVERSE INFERENCE AGAINST DEFENDANT AS A RESULT OF THE CODEFENDANTS GOOD CHARACTER EVIDENCE, MANDATES A NEW TRIAL. (Not Raised Below).
POINT IV - THE IMPOSITION OF CONSECUTIVE TERMS FOR EACH OF THE FOUR TAMPERING CONVICTIONS CONSECUTIVE TO THE ROBBERY FOR AN AGGREGATE 50-YEAR SENTENCE WITH A PAROLE BAR IN EXCESS OF 29 YEARS WAS EXCESSIVE.
II.
Whether to grant severance "rests within the trial court's sound discretion and is entitled to great deference on appeal." State v. Brown, 118 N.J. 595, 603 (1990). The trial court's decision "will be reversed only if it constitutes an abuse of discretion." State v. Weaver, 219 N.J. 131, 149 (2014). We must hew to this standard of review.
Defendant argues the trial court should have granted "defendant's severance motion," but it does not appear defendant made a severance motion. Rather, the court denied Burnham's motion to sever defendants' trials, and granted joinder of the robbery indictment and witness tampering indictments over defendants' objection. We address each ruling.
A.
Burnham moved to sever his trial from defendant's trial, arguing he would be prejudiced by the evidence of defendant's witness tampering. The trial court found severance inappropriate and unnecessary, as limiting instructions could prevent prejudice to Burnham. Nothing before us indicates defendant joined in Burnham's motion to sever, nor could defendant invoke Burnham's rationale for severance.
Generally, a defendant is required to make any motion to sever the charges before trial. R. 3:15-2(c); R. 3:10-2. Because defendant did not make a motion for a separate trial from Burnham before trial, or even during trial, he must show plain error. R. 2:10-2. If a defendant waits until after trial to protest joinder, "it takes a strong showing of probable prejudice in fact to warrant a finding of 'plain error.'" State v. Baker, 49 N.J. 103, 105, cert. denied, 389 U.S. 868, 88 S. Ct. 141, 19 L. Ed. 2d 144 (1967).
Generally, "defendants may be charged and tried jointly 'if they are alleged to have participated in the same act or transaction.'" Weaver, supra, 219 N.J. at 148; R. 3:7-7. "Indeed, under those circumstances, a joint trial is 'preferable' because it serves judicial economy, avoids inconsistent verdicts, and allows for a 'more accurate assessment of relative culpability.'" Ibid. (quoting Brown, supra, 118 N.J. at 605).
Defendant claims severance was required by Burnham's defense. However, "'[t]he test for granting severance . . . is a rigorous one.'" State v. Brown, 170 N.J. 138, 160 (2001) (quoting Brown, supra, 118 N.J. at 605-06). A defendant must show that "defendant's and a co-defendant's defenses are not simply at odds, but are 'antagonistic at their core,' meaning that they are mutually exclusive and the jury could believe only one of them." Weaver, supra, 219 N.J. at 148-49 (quoting Brown, supra, 118 N.J. at 605-07).
Determination of central or core antagonism necessarily focuses on the mutual exclusivity of defenses. "Mutual exclusivity" demands that the jury's universe of choices be limited to two: the jury can believe only either one defendant or the other . . . and to find only one defendant guilty. . . . If the jury can return a verdict against one or both defendants by believing neither, or believing portions of both, or, indeed, believing both completely, the defenses are
not mutually exclusive. Defenses that do not demand that the jury choose one or the other in order to return a verdict, though clearly in conflict and antagonistic, are not mutually exclusive.
[Brown, supra, 118 N.J. at 606 (citations omitted).]
Defendant notes Burnham testified at trial and denied he had anything to do with the robbery. Burnham testified he had simply gone into the casino with defendant, returned to Wick's car, and went to sleep. Burnham's testimony did not accuse defendant and was in no way antagonistic to defendant. See Brown, supra, 170 N.J. at 161.
Defendant did not testify. He did not dispute that Parks was robbed; his defense was that the State failed to prove he was one of the masked robbers. The jury could have believed Burnham, accepted defendant's defense, and acquitted them both; convicted one or the other of committing the robbery with an uncharged accomplice; or convicted both defendant and Burnham in what the State alleged was a two-perpetrator robbery. See State v. Sanchez, 224 N.J. Super. 231, 248 (App. Div.), certif. denied, 111 N.J. 653 (1988); cf. Weaver, supra, 219 N.J. at 138, 157 (finding antagonistic defenses where the "police determined that the shots were fired by either Weaver or Bryant" and Weaver accused Bryant of being the sole shooter).
Defendant cites the summation by Burnham's attorney, who argued at length why Burnham was innocent, but added:
Dashand Chase is guilty. He is the second assailant. His dark complexion matches the description. He's identified by Brandy Wicks in her original statement to police and again while testifying in court. Dashand Chase wrote letters to show his consciousness of guilt. He's acting guilty because he's guilty.Burnham's counsel argued defendant's accomplice was unknown.
"The fact that one defendant seeks to escape conviction by placing guilt on his or her co-defendant has not been considered sufficient grounds for severance." Brown, supra, 118 N.J. at 606. While this argument by Burnham's attorney was antagonistic to defendant, "[t]he mere existence of hostility, conflict, or antagonism between defendants is not enough." Ibid. The antagonism did not "become so intense as to justify a severance." Id. at 608. Indeed, defendant's counsel did not cross-examine Burnham, or discuss in summation Burnham's testimony or defense. See id. at 607-08. Because defendants' defenses were not mutually exclusive, they were not antagonistic at their core, and severance was not required. Id. at 605-09.
Finally, defendant notes that Burnham called a former teacher, who testified Burnham was a good, respectful student in eighth grade, and a former neighbor, who testified Burnham had a reputation as being honest, truthful, and law-abiding. Defendant argues this "character" evidence made Burnham look good by comparison. However, "'[a] separate trial should not be granted merely because it would offer defendant a better chance of acquittal.'" Id. at 619; see, e.g., State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div.) (finding severance not required where the evidence concerning the defendants differed), certif. denied, 101 N.J. 277 (1985); State v. Morales, 138 N.J. Super. 225, 230-31 (App. Div. 1975) (finding severance not required to create a more favorable impression of the defendant).
Thus, defendant cannot show error. In any event, he cannot show the denial of Burnham's severance motion was "clearly capable of producing an unjust result," particularly given the strength of the evidence against defendant. R. 2:10-2.
B.
Defendant also cannot show the trial court abused its discretion in joining the robbery and witness tampering indictments. Joinder of "similar or related offenses" is generally preferred "[i]n the interests of [judicial] economy and efficiency." State v. Coleman, 46 N.J. 16, 24 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 ( 1966). Indeed, "if separate offenses were required to be tried separately in all circumstances, the multiplicity of trials would disserve the State and defendants alike." State v. Manney, 26 N.J. 362, 366 (1958).
A trial court may order discretionary joinder of two or more indictments for trial "if the offenses and the defendants . . . could have been joined in a single indictment." R. 3:15-1(a); see Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:15-1 (2015). Two or more offenses may be joined in a single indictment "if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan." R. 3:7-6. Here, it is undisputed that the witness tampering charges in the second and third indictments arise out of the same act as the robbery indictment, namely the robbery, and were "parts of a common scheme or plan." Ibid.; see, e.g., State v. Moore, 113 N.J. 239, 272-74 (1988); State v. Wilkins, 219 N.J. Super. 671, 675-76 (1987).
"Notwithstanding the preference for joinder, Rule 3:15-2(b) vests a trial court with discretion to order separate trials if joinder would prejudice unfairly a defendant." State v. Chenique-Puey, 145 N.J. 334, 341 (1996). "[D]efendant bears the burden of demonstrating prejudice." State v. Lado, 275 N.J. Super. 140, 149 (App. Div.), certif. denied, 138 N.J. 271 (1994).
In opposing joinder, Burnham's lawyer argued that Burnham, who was charged only in the robbery indictment, would be prejudiced by joinder of the second and third indictments charging defendant with witness tampering. Judge DeLury rejected this argument and granted the State's application, finding joinder was proper and not prejudicial. The court correctly found that, even if the indictments were severed, the evidence of defendant's witness tampering would be admissible under N.J.R.E. 404(b) in a robbery trial to show consciousness of guilt of the robbery.
Defendant's lawyer rested on his brief, which is not before us.
"'Our courts have long held that evidence of threats made by a defendant to induce a witness not to testify is admissible because it illuminates the declarant's consciousness of guilt.'" State v. Goodman, 415 N.J. Super. 210, 232 (App. Div. 2010) (citation omitted), certif. denied, 205 N.J. 278 (2011). Evidence that defendant instructed or bribed witnesses not to testify or to lie is similarly admissible. State v. Williams, 190 N.J. 114, 124-26, 129-30 (2007); State v. Burden, 393 N.J. Super. 159, 172 (App. Div. 2007), certif. denied, 196 N.J. 344 (2008). "If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)).
Here, defendant engaged in diverse efforts at witness tampering which together were highly probative of his consciousness of guilt. Defendant's "generalized concern about prejudice" cannot prevent joinder. State v. Handy, 215 N.J. 334, 354 (2013). Thus, the trial court did not abuse its discretion in ordering joinder of the three robery indictments.
III.
Defendant now claims the trial court failed to give proper instructions regarding the joined witness tampering counts. To the contrary, the trial court followed the Model Jury Charge (Criminal), "Criminal Final Charge, Multiple Charges" (2002), and instructed the jury that the robbery indictment and the witness tampering indictments each charged
separate offenses by separate Counts of the Indictment. In your determination of whether the State has proven the Defendant guilty of the crimes charged in the Indictment, beyond a reasonable doubt, the Defendant is entitled to have each Count considered separately by the evidence, which is relevant material to the particular charge based on the law as I'm giving it to you. You must also return separate verdicts
as to each Defendant as to each of the charges being tried. In other words, you have to decide each case and each count individually.
The trial court further instructed the jury:
Each offense and each Defendant in this Indictment should be considered by you separately. The fact that you may find a particular Defendant guilty or not guilty of a particular crime should not control your verdict as to any other offense charged against that Defendant and should not control your verdict against any other Defendant.
An instruction "to deliberate separately on each of the twelve counts, and to return a judgment of conviction only if convinced that each element of the individual counts had been proved beyond a reasonable doubt," is adequate to prevent prejudice from joinder. State v. Pitts, 116 N.J. 580, 603 (1989). Here, the trial court also conveyed "that the determination of his guilt or innocence on one indictment should not be considered as indicative of his guilt or innocence on the other." Coleman, supra, 46 N.J. at 25. Defendant has not rebutted the presumption that the jury followed the trial court's instructions. State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013); Coruzzi, supra, 189 N.J. Super. at 301.
In his summation, defendant's counsel reiterated this "extremely important" instruction by the court, adding that the jury had to consider the charges separately and not assume "if he did this, well, he must have done that."
Defendant did not object to the trial court's instructions, but claims on appeal that the court was also required to give a limiting instruction under N.J.R.E. 404(b). Because defendant never raised such a claim at trial, he must show plain error. State v. Brown, 138 N.J. 481, 535 (1994). Thus, he "has the burden of proving that the error was clear and obvious," and that it had "the clear capacity to bring about an unjust result." State v. Koskovich, 168 N.J. 448, 529 (2001) (internal quotation marks omitted).
Defendant argues that a Rule 404(b) limiting instruction is required because the evidence of the charged witness tampering offenses was "other crimes" evidence. However, here the witness tampering offenses are charged crimes, not "other crimes," and thus the evidence was not admitted pursuant to Rule 404(b).
Rule 404(b) addresses "uncharged" crimes, wrongs, or acts. E.g., State v. Rose, 206 N.J. 141, 159, 161, 162 n.11, 179-80 (2011). "The threshold determination under Rule 404(b) is whether the evidence relates to 'other crimes,' and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime[s]" before the jury at trial. Id. at 179. Evidence which directly proves a charged offense is "intrinsic" and not subject to Rule 404(b). Id. at 180-81.
Moreover, in almost every criminal trial, more than one charge is joined for trial. To require Rule 404(b) limiting instructions in such cases to explain how the evidence of each charge could be used regarding each other charge would be difficult and sometimes impossible, and would greatly complicate both the court's instructions and the jury's duties.
As discussed above, the trial court found no prejudice from the joinder of the three indictments because the evidence of witness tampering would have been admissible under Rule 404(b) in the robbery trial if the witness tampering charges were not joined. The Supreme Court in Pitts applied that no-prejudice analysis, but it did not require a Rule 404(b) instruction for offenses that are joined as charged crimes. Pitts, supra, 116 N.J. at 602-03. Similarly, we have stated that, "if evidence exists that would be admissible under N.J.R.E. 404(b) at both trials, the defendant would not suffer substantially more prejudice in a joint trial than he would in separate trials, even though the jury instructions on admissibility might differ." State v. Alfano, 305 N.J. Super. 178, 192 (App. Div. 1997) (emphasis added). As set forth above, in a joint trial it is adequate to give the "multiple-count" instruction.
In any event, defendant cannot cite any case requiring a Rule 404(b) instruction regarding evidence of a charged crime, even in such a joinder situation. He cites Williams, supra, but there the Supreme Court addressed the admission of evidence of tampering in a new trial where the tampering counts were not before the new jury, making them "other crimes" for purposes of the new trial. 190 N.J. at 117, 133-34 . Similarly, in Burden, supra, defendant's witness tampering while awaiting trial does not appear to have been charged and thus was an "other crime." 393 N.J. Super. at 164, 170, 172.
Because no precedent requires such an instruction, defendant cannot show plain error. "'Plain' is synonymous with 'clear' or, equivalently, 'obvious.'" United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508, 519 (1993). "Our law is the same." State v. Chew, 150 N.J. 30, 82 (1997) (citing Olano, supra, 507 U.S. at 734, 113 S. Ct. at 1777, 123 L. Ed. 2d at 519), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). An error is "plain" only if "the error is clear under current law." Olano, supra, 507 U.S. at 734, 113 S. Ct. at 1777 , 123 L. Ed. 2d at 519; accord Henderson v. United States, ___ U.S. ___, ___, 133 S. Ct. 1121, 1130, 185 L. Ed. 2d 97-98 (2013).
Moreover, even ignoring that defendant's witness tampering efforts were charged crimes, he cannot show that the absence of a Rule 404(b) limiting instruction was "clearly capable of producing an unjust result" on the robbery indictment. R. 2:10-2. "Unlike evidence of the commission of crimes similar to those with which defendant is charged, evidence of witness-tampering is unlikely to lead a jury to conclude that a defendant is predisposed to commit the type of crime with which he is accused." Burden, supra, 393 N.J. Super. at 172.
The trial court properly gave a Rule 404(b) instruction regarding the March 2011 letter to Burnham's attorney, for which defendant was not charged. See id. at 172.
IV.
Defendant did not object when the trial court instructed that the jury may consider the testimony about Burnham's character "as it pertains to the Counts against Tony Burnham," and read the Model Jury Charge (Criminal), "Testimony of Character Witness" (1992). However, defendant now claims the jury had to be instructed not to draw an adverse inference against defendant based on Burnham's character evidence. Because defendant did not raise that claim in the trial court, he must show plain error. As defendant fails to cite any precedent requiring such an instruction, he cannot show "the error is clear under current law." Olano, supra, 507 U.S. at 734, 113 S. Ct. at 1777, 123 L. Ed. 2d at 519.
Indeed, defendant shows no basis for such an instruction. He analogizes to the Model Jury Charge (Criminal), "Defendant's Election Not To Testify" (2009), which states that a jury "must not consider . . . that (defendant) did not testify." That "no-adverse-inference" instruction "is grounded on the Fifth Amendment privilege against self-incrimination," and must be given "when it is requested by a defendant." State v. Camacho, 218 N.J. 533, 542, 546 (2014); see N.J.R.E. 532. A request is required because a defendant may chose not to ask for such a charge "as a matter of trial tactics." State v. Lowery, 49 N.J. 476, 485 (1967). Here, defendant did not request his now-proposed instruction. Moreover, the proposed instruction about character evidence has nothing to do with privileges. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 532 (2015) ("The Rule does not purport to preclude comment and the drawing of adverse inferences in areas other than privileges.").
In any event, a defendant who does not request a no-adverse-inference instruction must show its absence was "'clearly capable of producing an unjust result.'" Camacho, supra, 218 N.J. at 554 (quoting R. 2:10-2). Defendant makes no showing that the jury convicted him, not based on the abundant evidence against him, but based on Burnham's character evidence.
Camacho overruled the contrary ruling in the case defendant cites, State v. Haley, 295 N.J. Super. 471 (App. Div. 1996). --------
V.
Lastly, defendant challenges his sentence. Under the robbery indictment, Judge DeLury merged the other counts into the first-degree robbery count, on which he sentenced defendant to seventeen years in prison, with 85% to be served prior to parole eligibility. Under the second indictment, the judge imposed a consecutive twelve years in prison, with six years of parole ineligibility, for his first-degree witness tampering threatening Parks in July 2010; a consecutive seven years in prison, with three years of parole ineligibility, for defendant's witness tampering of Dumpson in January 2011; and a consecutive seven years in prison, with three years of parole ineligibility, for defendant's witness tampering trying to bribe Parks in February 2011. Under the third indictment, the judge imposed a consecutive seven years in prison, with three years of parole ineligibility, for defendant's witness tampering threatening Boyd in December 2012 and January 2013, into which the other count merged. The aggregate sentence was fifty years in prison, with over twenty-nine years of parole ineligibility.
Defendant argues the court should not have imposed four consecutive sentences for witness-tampering convictions under N.J.S.A. 2C:28-5. N.J.S.A. 2C:28-5(e) states:
Notwithstanding . . . any other provision of law, a conviction arising under this section shall not merge with a conviction of an offense that was the subject of the official proceeding or investigation and the sentence imposed pursuant to this section shall be ordered to be served consecutively to that imposed for any such conviction.Defendant concedes N.J.S.A. 2C:28-5(e) required the sentence for first-degree witness-tampering to run consecutively to the robbery sentence, but argues there was no basis to run the other three sentences consecutive to each other.
The trial court explained why it felt "consecutive sentencing is warranted" for the witness-tampering offenses:
The defendant's conviction for robbery represents facts and circumstances separate and distinct from the witness tampering charges. These are separate and distinct evils occurring at different places and at different times. The defendant's wrongdoing was ongoing and not the result of a single act of aberrant behavior. His egregious, violent and threatening conduct didn't begin and end on August 4, 2009, with the commission of the armed robbery. Rather his criminality continued and prolonged his predation upon the robbery victim with his threats over many months, and that he tampered with others whom he enlisted in his
tampering crimes. There is no clearer case for consecutive sentencing than this one. In a system of justice where there are no free crimes and the punishment shall fit the crimes, consecutive sentences are required for this defendant's actions which predominantly were independent of each other.
The trial court's reasons reflected the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Defendant claims there was only one victim. In fact, defendant not only threatened and sought to bribe Parks, but he also threatened her family, threatened and sought to bribe Boyd, and offered a benefit to Dumpson. "[C]rimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences." State v. Molina, 168 N.J. 436, 442 (2001).
Defendant notes he sent the tampering letters while he was incarcerated and contends he could not carry out his threats of violence. However, as the trial court noted, the fact that defendant "continued to offend by threatening the victim and her family" and others "[e]ven when confined and pending trial with the prospect of a lengthy prison sentence for first-degree robbery" showed the need for additional incarceration.
In part because defendant's "criminality continued unabated" after his arrest, the trial court found not just a risk but "a virtual certainty" defendant would commit another offense, "an extensive juvenile and adult record for serious offenses" predating the current "most serious" charges, and "a very strong need to deter this defendant specifically from future wrongdoing." See N.J.S.A. 2C:44-1(a)(3), (6), (9). Giving each of these factors "great weight," and finding no mitigating factors, the court concluded that "the aggregate sentence" was "necessary and just to punish, deter and correct this defendant" who had chosen "a life of crime."
"On appellate review, we do not substitute our judgment for that of the trial court unless the sentence is so wide of the mark as to require our intervention." State v. Spivey, 179 N.J. 229, 245 (2004). Given defendant's crimes and criminal history, and Parks' recounting of the devastating effect of defendant's crimes upon her and her family, "[w]e cannot conclude that the trial court abused its discretion by imposing consecutive sentences." Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION