Opinion
DOCKET NO. A-4907-12T3
01-21-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JERMAINE S. FOSTER, a/k/a JERMAINE ST. PATRICK FOSTER, Defendant-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-06-1212. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Defendant Jermaine S. Foster, a/k/a Jermaine St. Patrick Foster, appeals from his conviction following a jury trial for the attempted murder of his former girlfriend. He argues the trial court improperly used the word "intent" in its response to a question presented by the jury concerning premeditation. Defendant claims such use was vague and unclear, thereby confusing the jury and compromising its ability to fairly consider the attempted murder charge. Also, defendant challenges the court's assessment of applicable aggravating and mitigating factors in imposing a sentence of twenty years' imprisonment. We affirm.
Defendant's conviction arose from his shooting of his former girlfriend in her face, wrist, and shoulder. Just before the shooting, the two had engaged in a verbal altercation both inside and outside the diner where she was employed, while in the presence of others, involving her desire to end the relationship. Witnesses testified at trial that as the victim prepared to clean the diner at around 3:00 a.m., defendant arrived and attempted to persuade her to leave with him once finished working. After she refused, an argument ensued and defendant grew more aggressive. At one point, he was observed running his finger across his throat in a threatening manner. Upon the two finally exiting the diner, their yelling escalated.
Once outside, the victim told defendant she "[could not] do this anymore" and wished to end the relationship entirely. Defendant responded: "You think it's over because you say it's over?" He moved as if to begin walking away, turned around, pulled out a handgun, and shot the victim in the face. After the victim fell, defendant shot her twice more. The first bullet entered through her cheek, breaking her cheekbone, then proceeded through her mouth, knocking out all of her teeth and breaking her jaw, and finally exited through her chin. The second shot hit her in the right wrist, fracturing bones. The last bullet struck her in the right shoulder. The victim also suffered a ruptured large vein in her neck and fractures to her cervical spine. When police and paramedics arrived shortly thereafter, they stabilized the victim and took her to the hospital. There, doctors recovered bullet fragments and bullets from the victim's body and, after emergency surgery, she remained in a medically-induced coma for over a month.
Police arrested defendant later that day. On June 28, 2011, a Monmouth County Grand Jury indicted defendant, charging him with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three) and third-degree unlawful possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count four). Tried to a jury, defendant was convicted on all counts.
Defendant did not testify in his own defense. His counsel did not dispute the evidence establishing defendant as the shooter. Rather, defense counsel claimed the mens rea necessary to establish culpability for attempted murder was lacking. According to counsel, defendant's conduct was inconsistent with that of a person "who had the presence of mind to act purposely." The jury evidently rejected counsel's argument regarding defendant's state of mind as it convicted him of all charges.
At defendant's sentencing hearing, the court merged count two with count one, and sentenced defendant to twenty years imprisonment, with an eighty-five-percent period of parole ineligibility and five years post-release parole supervision, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; ten years imprisonment on count three, with a thirty nine-month period of parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), to run concurrently; and a concurrent term of five years imprisonment on count four.
Following the entry of defendant's judgment of conviction, he filed this appeal. He argues:
POINT I
THE COURT'S RESPONSE TO THE JURY'S QUESTION ABOUT HOW "PREMEDITATION" RELATED TO THE ATTEMPTED MURDER CHARGE OBSCURED THE CRUCIAL DISTINCTION BETWEEN THE PURPOSEFUL AND
KNOWING [MENS REA], THEREBY INCORRECTLY ALLOWING THE JURY TO CONVICT BASED ON A FINDING OF THE LESSER DEGREE OF CULPABILITY. (Not Raised Below).
POINT II
THE COURT IMPOSED A MANIFESTLY EXCESSIVE, UNDULY PUNITIVE SENTENCE THAT SHOULD BE REDUCED.
Having considered defendant's claims in light of our review of the record and applicable legal principles, we affirm.
Initially, we direct our attention to defendant's argument, made for the first time on appeal, regarding the trial court's response to a jury question. We find no merit to this contention.
Prior to the jury beginning its deliberations, the court properly charged it with the law of attempted murder, in accordance with the model jury charge in effect at that time. The charge included the instruction that the jury had to find defendant acted purposely and that "it was [his] purpose to cause the death of [his victim]."
Model Jury Charge (Criminal), "Attempted Murder" (1992).
During deliberations, the jury sent a note to the judge, inquiring: "How does premeditation compare to intent? Is that relevant in [the attempted murder] charge?" The judge asked both parties' counsel whether they had "[a]ny thoughts" pertaining to the inquiry, to which the State responded: "[T]he answer is premeditation is not required. The word is not the same as 'purpose.' That's the plain and simple answer there." Upon the judge suggesting "that premeditation is not a required element of the attempted murder [charge], although it may be relevant," defense counsel agreed, stating: "Defense would be satisfied with that explanation." The judge recalled the jury and replied to its question, stating: "Premeditation is not a required element of the attempted murder charge, although it may be relevant to your determination of the issue regarding intent."
Defendant asserts the trial judge's reference to the concept of intent was overly vague, thereby "allow[ing] the jury to consider that a knowing planning of the crime could support the mens rea component of attempted murder when, in fact, only purposeful conduct suffices." He claims that, as his defense at trial focused on the absence of purposeful conduct, the court's explanation was clearly capable of producing an unjust result and requires reversal of the attempted murder conviction.
Defendant concedes the trial judge did not err in "instruct[ing] the jury that premeditation is not a required element of attempted murder." Accordingly, our review focuses on the judge's explanation concerning the application of "intent."
The State counters by averring that, under the doctrine of invited error, defendant is precluded from raising this argument on appeal because he specifically assented to and requested the language used in the judge's response. Further, the State argues defendant has failed to show any error, let alone plain error, in the instruction. Therefore, the State submits, defendant's attempted murder conviction should be affirmed.
When a defendant raises an issue for the first time on appeal, we review the alleged error under the plain error standard. R. 2:10-2. A plain error is one "clearly capable of producing an unjust result." State v. Munafo, 222 N.J. 480, 488 (2015) (quoting R. 2:10-2). However, not every error potentially yielding an injustice requires reversal. Rather, the possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict that it otherwise might not have reached." State v. Galicia, 210 N.J. 364, 388 (2012) (alteration in original) (quoting State v. Lazo, 209 N.J. 9, 26 (2012)).
Plain error, in the context of a jury charge, is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Camacho, 218 N.J. 533, 554 (2014) (alteration in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)). We consider the charge as a whole to determine if an error in the charge constitutes plain error. State v. Brown, 190 N.J. 144, 160 (2007) (citing State v. Torres, 183 N.J. 554, 564 (2005)). But see State v. Grenci, 197 N.J. 604, 623 (2009) ("We doubt that directing a verdict on an element of an offense can ever be harmless."); State v. Rhett, 127 N.J. 3, 5 (1992) (recognizing the need for accuracy is "[s]o critical . . . that erroneous instructions on material points are presumed to be reversible error" (emphasis added) (quoting State v. Martin, 119 N.J. 2, 15 (1990))); State v. Ambroselli, 356 N.J. Super. 377, 386 (App. Div. 2003) ("Appropriate and proper charges to a jury are essential for a fair trial. . . . A proper explanation of the elements of a crime is especially crucial to the satisfaction of a criminal defendant's due process rights." (citations and internal quotation marks omitted)).
We conclude the trial judge properly instructed the jury and did not commit any error, let alone plain error. In responding to the jury's question, the judge's use of the word "intent" did not alter his instruction on attempted murder that the requisite mens rea — the purposeful intent to cause death — must be found. Rhett, supra, 127 N.J. at 7.
Defendant's argument to the contrary is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, a defendant's "intent" is simply an interchangeable description of the state of mind necessary for criminal culpability. See State v. Harris, 141 N.J. 525, 551 (1995) (addressing the constitutional impact of mental disease on "the presence of the so-called mens rea, or requisite intent to commit the offense" (emphasis added)); State v. Ball, 268 N.J. Super. 72, 114 (App. Div. 1993) (explaining a finding of accomplice liability demands that the accomplice "share the same intent or culpable mental state required to be proven against the actual perpetrator" (emphasis added)). It is not a different standard for mens rea than "purposely" in the way "knowingly," "recklessly" or "negligent" are distinct states of mind. See Ambroselli, supra, 356 N.J. Super. at 387 ("Between 'purposeful conduct' and 'accidental conduct' the Criminal Code recognizes no less than three intermediate levels of culpability: knowing; reckless; and negligently." (footnote and citations omitted)). The court's reference to intent here was not, as defendant posits, analogous to the trial court "ask[ing a] jury to determine whether defendant had committed or attempted 'to commit [a] killing purposely or knowingly.'" Rhett, supra, 127 N.J. at 7; see also State v. Gilliam, 224 N.J. Super. 759, 763-64 (App. Div. 1988) (reversing attempted murder conviction because of a charge that jury must find defendant acted "purposely or knowingly"); Ambroselli, supra, 356 N.J. Super. at 387 (finding a court juxtaposing "purposeful" with "accidental" in its instruction constituted a clear "misstatement of the law" with a "clear capacity to mislead the jury and produce an unjust result").
Even if the judge erred, we believe the doctrine of invited error would apply here and thus preclude reversal. The doctrine ordinarily precludes a defendant from arguing on appeal that alleged errors at trial "were induced, encouraged or acquiesced in or consented to by defense counsel." State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). It is undisputed that defendant's counsel not only agreed to the court's language, but requested its use. Even more telling, defense counsel routinely used the word "intent" as a substitute for "purposely" during his opening and closing statements to the jury, ending his summation with: "I think when you take into account everything here, I don't think there's any question that there was no intent on the part of [defendant] to kill [the victim]." --------
Having discerned no error that had a clear capacity to bring about an unjust result, we have no cause to disturb defendant's conviction.
We next address defendant's contention that the sentence imposed was excessive. We disagree.
Defendant avers the trial judge incorrectly weighed the aggravating and mitigating factors at sentencing. Additionally, he submits the court erred in not considering the non-statutory mitigating factor of his eight-year service in the United States Army. The State contends the trial court did not abuse its discretion, but rather properly considered and weighed the applicable factors.
In sentencing defendant to twenty years of imprisonment, subject to the eighty-five-percent term of parole ineligibility pursuant to NERA, the judge stayed within the bounds of the proper statutory range for those convicted of first-degree crimes. See N.J.S.A. 2C:43-6(a)(1); N.J.S.A. 2C:43-7.2. The court found aggravating factors two, three, six and nine. See N.J.S.A. 2C:44-1(a)(2), (3), (6) and (9).
As to the judge's finding of aggravating factor two, "[t]he gravity and seriousness of harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2), he relied upon the victim's horrific injuries from being shot three times — once in the face at close range — and her extensive medical treatment and grueling recovery. Regarding aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), the judge found defendant's substance abuse and mental health issues, in conjunction with his prior arrests and convictions, including driving while intoxicated and narcotics distribution, were "predictors of future criminal conduct." Under aggravating factor six, "[t]he extent of defendant's prior criminal record and the seriousness of the offenses," N.J.S.A. 2C:44-1(a)(6), the court focused on defendant's 2011 conviction for attempting to sell narcotics to an undercover police officer.
AS to aggravating factor nine, the judge stated he
place[d] great weight upon aggravating factor number 9[, "the need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9)]. And the reason for it is, this is a case of gun violence. And it's a case of gun violence over something that is stupid . . . a disagreement about whether a relationship is going to be continue[d] or not. And there is a very, very strong need to deter [defendant] and others from resorting to gun violence over simple, minor, inconsequential disputes.
The trial court found no mitigating factors, but did explicitly recognize defendant's distinguished military service. Nevertheless, the judge found the aggravating factors substantially outweighed any mitigating effect of defendant's service.
"On appeal, a trial judge's sentencing determinations are entitled to substantial deference." State v. Jaffe, 220 N.J. 114, 124-25 (2014) (quoting State v. Pagan, 378 N.J. Super. 549, 558 (App. Div. 2005)). In our limited review of a criminal sentence, we must decide "whether there is 'a clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). We are bound to uphold the trial court's sentence unless:
(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."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original).]
We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
When sentencing a defendant, the trial court must consider the relevant aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and (b). Ibid. It must "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.
We conclude from our review the sentencing court did not abuse its discretion. Bolvito, supra, 217 N.J. at 228. The court properly applied the statutory sentencing guidelines for first-degree offenses and based its findings of aggravating factors on competent credible evidence, articulating its reasons on the record. Ibid. The result was a sentence that, under the facts of this, case does not "shock [our] judicial conscience." 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