Opinion
DOCKET NO. A-1104-10T3
12-17-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER FOUNTAIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Assistant County Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Ashrafi.PER CURIAM
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-1962.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Assistant County Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief
Defendant Christopher Fountain appeals from his conviction by a jury on charges arising from the shooting of an acquaintance. He also appeals from his twenty-five-year sentence of imprisonment. We affirm the jury's verdict but remand for a change of the sentence.
The shooting occurred in Atlantic City on October 9, 2006. Defendant's trial was held in June 2010. The victim testified at the trial that, on the night of the shooting, he and others were drinking and socializing outside a house on South Carolina Avenue. He got into an argument with another person. Defendant intervened in the argument, grabbed the victim, and told him "to cut it out." Defendant then went into the house, and the victim decided to go home. As the victim walked past the next house, he saw defendant with a gun. Defendant fired one shot, hitting the victim in the groin area. Bleeding and down on the sidewalk, the victim said to defendant: "I thought you were my friend." Defendant told him to "shut up" and walked back into the house.
The police arrived on the scene at approximately 9:40 p.m. Officers and medical emergency responders attended to the victim on the sidewalk. He was not able to provide information. Detectives Brennan and Kane spoke to several people in the area. A woman named Brenda Cook, who lived six houses away, gave Detective Brennan a general description of the shooter and his clothing, and she pointed to a house that she "guessed" the shooter had entered. The police obtained permission to search the house, but they did not find any adult males there. They did soon find the rifle that was used for the shooting in the backyard of a neighbor's house.
The victim was rushed to a nearby hospital, where immediate surgery saved his life. Two days later, Detective Kane interviewed the victim in the hospital. The victim was able to speak but was reluctant to give any information and did not identify the shooter.
On the following day, October 12, 2006, a man who had been arrested on an unrelated charge told the police he had information about the shooting. The police interviewed him and subsequently tape-recorded a sworn statement. He said he was walking in the area when he saw a person he knew as "Mauley" hand a rifle to defendant and then he saw defendant shoot the victim.
Three weeks after the shooting, the police interviewed defendant. He said he was in the area on that night drinking with others on the porch of his cousin's house on South Carolina Avenue, but he was not present at the time of the shooting. He said he had gone to a chicken restaurant some fifty yards down the street and he heard the shot from there. At first he said he was alone in the restaurant, but later he said he was with "Mauley," whom he could not identify except by that name.
Police lost track of the victim after he was discharged from the hospital on October 25, 2006. A month or two later, the victim moved out of New Jersey. In mid-May 2007, the victim contacted Detective Kane and told him that defendant was the person who had shot him. At the trial, the victim testified he had not identified the shooter earlier because he felt "vulnerable" while in New Jersey. He said that about a month after his discharge from the hospital, defendant saw him and said to him that he knew where his children and cousin lived. He took that statement as a threat. Only after he moved out of state did he feel safe enough to provide information about defendant as his assailant.
At defendant's trial, the cooperating witness who had been arrested on unrelated charges and initially identified defendant retracted his prior statement and claimed that he had no recollection of the incident. The prosecution presented his sworn, recorded statement as evidence before the jury.
Defendant has not challenged on appeal the admission of that statement. See State v. Gross, 121 N.J. 1 (1990).
Defendant testified in his own defense. He denied he had shot the victim and asserted he was at the chicken restaurant. The defense also called another witness, Darrell Parker, who testified he had witnessed the shooting and that defendant was not the shooter. Parker provided a description of the shooter that did not fit defendant's physical appearance and was similar to the description provided by Brenda Cook almost four years earlier. Parker admitted that he was drunk at the time of the shooting and that he had been confined at the county jail a few cells apart from defendant at the time that he provided an exculpatory affidavit to the defense in November 2007, thirteen months after the shooting. The affidavit was not in his handwriting.
Cook did not testify at the trial. Several weeks after the shooting, Detective Kane had contacted Cook and attempted to schedule a meeting to show her a photo array of suspects. Cook said she did not want to get involved and would not look at any photographs. She hung up the phone on Detective Kane. Near the time of trial in 2010, the defense had served a subpoena upon Cook. She did not appear, however, and the defense investigator could not find her. Defense counsel did not request a continuance of the trial, apparently because his investigator had already done all he reasonably could to find her. Cook's family had told the investigator she was homeless and they did not know where she was.
The jury found defendant guilty of the first five counts of the six-count indictment: second-degree aggravated assault for causing serious bodily injury under circumstances manifesting extreme indifference to the value of human life, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault for causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(2); fourth-degree aggravated assault for pointing a firearm at the victim, N.J.S.A. 2C:12-1b(4); second-degree possession of a rifle for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a rifle without an identification card, N.J.S.A. 2C:39-5c. The jury found defendant not guilty of the sixth count, second-degree witness tampering for allegedly threatening the victim to withhold evidence, N.J.S.A. 2C:28-5a.
At the sentencing hearing, the trial judge merged the first four counts of conviction listed above and sentenced defendant to a mandatory extended term within the first-degree range as a repeat offender with a firearm. N.J.S.A. 2C:43-7a(3), 44-3d. The sentence on those merged counts was twenty years imprisonment with eighty-five percent of the term to be served without eligibility for parole and three years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On the fifth count of conviction, unlawful possession of a rifle without an identification card, the court sentenced defendant to a consecutive term of five years imprisonment. The sentences on these charges were to run consecutively to an aggregate sentence of twenty-two years imprisonment imposed on defendant for conviction on a similar shooting incident, for which he had been tried and convicted earlier.
On appeal, defendant argues:
POINT I
THE TRIAL COURT'S EXCLUSION OF EXCULPATORY EVIDENCE, INDICATING THAT AN EYEWITNESS TO THE SHOOTING HAD PROVIDED THE POLICE WITH A DESCRIPTION OF THE GUNMAN THAT WAS INCONSISTENT WITH DEFENDANT'S APPEARANCE, DEPRIVED DEFENDANT OF THE RIGHT TO PRESENT A DEFENSE AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
After the State's responding brief was filed, defendant submitted a pro se supplemental brief in which he appears to argue that his due process rights were violated because his attorney was not present when the police showed a photo array to the victim. Defendant has not pointed to any legal authority that supports his argument. The case law is to the contrary. See United States v. Ash, 413 U.S. 300, 321, 93 S. Ct. 2568, 2579, 37 L. Ed. 2d 619, 633 (1973) (defendant does not have a right to have his attorney present for a photo identification procedure used with a prosecution witness); State v. Farrow, 61 N.J. 434, 450 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973); State v. Carter, 185 N.J. Super. 576, 578-80 (Law Div. 1982).
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Defendant argues that the trial judge committed reversible error when he sustained the prosecutor's hearsay objections preventing his attorney from cross-examining Detective Brennan about the information he had obtained from Brenda Cook on the night of the shooting. Defense counsel argued that Cook's statements to Detective Brennan should be admitted as a hearsay exception, either as an excited utterance under N.J.R.E. 803(c)(2) or as a present sense impression under N.J.R.E. 803(c)(1). The judge permitted defense counsel to develop a foundation for admission of the evidence under a hearsay exception. When defense counsel was unsuccessful in his efforts, the judge sustained the prosecutor's objection and excluded the proposed testimony.
We find no error in the trial judge's ruling. Appellate courts generally afford substantial deference to a trial court's evidentiary rulings. State v. Ramseur, 106 N.J. 123, 266 (1987); State v. Coder, 198 N.J. 451, 468 (2009); see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (citing cases under several rules of evidence applying the abuse of discretion standard of review to the trial court's rulings).
Cook's statements to the detective did not satisfy the requirements of any hearsay exception. Detective Brennan could not say that Cook was under the stress of excitement at the time of her speaking to him, as required by N.J.R.E. 803(c)(2), and she did not make the statement so close in time to the shooting that it satisfied the immediacy requirement of N.J.R.E. 803(c)(1).
Defendant argues that we should create a new hearsay exception when the defense seeks to present exculpatory identification evidence. We decline to do so. The cases cited by defendant are not persuasive.
In State v. Simmons, 52 N.J. 538, 541 (1968), cert. denied, 395 U.S. 924, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969), the trial court had ruled that the sixteen-year-old, mentally-disabled, and deaf-mute victim of a sexual assault was not competent to testify at the trial. Her brother testified and identified the defendant as the man who attacked his sister. Id. at 540. The victim, too, had identified her assailant by means of gestures and emotional reaction when she saw him again on the night of the attack. The Supreme Court held it was not error for the trial court to admit testimony by other witnesses regarding the victim's gestures as "res gestae" and as "spontaneous and contemporaneous statements." Id. at 541.
The Court's holding in Simmons may not withstand scrutiny under subsequent decisions. See Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004) (the confrontation clause of the Sixth Amendment forbids the use of "testimonial" out-of-court declarations if the declarant is not a witness at trial subjected to cross-examination); State v. Rose, 206 N.J. 141, 182 (2011) ("disapprov[ing] . . . further use of res gestae to support evidential rulings"). In any event, the facts in Simmons supported admission of the teenage girl's gestures as an excited utterance shortly after the crime was committed and she saw her attacker while accompanied by her mother and a police officer in the hospital emergency room. Simmons, supra, 52 N.J. at 541. Here, as we have stated, defendant did not show that Cook's statement to the police satisfied the requirements for admission as an excited utterance or as a present sense impression.
Defendant also relies on State v. Dudley, 269 N.J. Super. 632 (Law Div. 1993), a trial court decision holding that an exculpatory out-of-court identification by the unavailable victim of an attempted murder would be admissible when offered by the defendant even though it did not satisfy any hearsay exception. Id. at 633, 638. We have not found any other case that follows the holding of Dudley. We think its facts are distinguishable from this case, even if its holding were to be accepted as a viable principle of constitutional law when in conflict with the rules of evidence.
The trial court in Dudley emphasized that reliable police procedures had resulted in the unavailable victim's pre-trial identification of a cooperating prosecution witness as his assailant. Id. at 636-37. To support its unique holding, the trial court applied federal evidentiary standards applicable to Fed. R. Evid. 804(b)(5), which is now Fed. R. Evid. 807. That rule establishes a residual or "catch-all" hearsay exception that was deliberately excluded from our New Jersey Rules of Evidence. Dudley, supra, 269 N.J. Super. at 635-36; see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 804(c)(24) (2012). Cook's statements to Detective Brennan did not have the "circumstantial guarantees of trustworthiness" required for admission of hearsay under the federal residual exception. Fed. R. Evid. 807(a)(1).
Next, defendant cites Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), as establishing a federal constitutional prohibition against exclusion of highly exculpatory evidence in a criminal trial. In Chambers, the Supreme Court addressed Mississippi's common law "voucher rule," prohibiting a party from impeaching a witness that the same party had called to the witness stand. Id. at 294, 93 S. Ct. at 1045, 35 L. Ed. 2d at 308. In that case, the result of applying the "voucher rule" was that the defendant was prevented from impeaching a witness who had confessed to the crime on three occasions, while the hearsay rule barred the highly exculpatory testimony of several witnesses who had heard the confessions. Id. at 298, 93 S. Ct. at 1047, 35 L. Ed. 2d at 310. Were it not for the strict application of the "voucher" and hearsay rules, the proffered defense witnesses, who had shown "considerable assurance of their reliability," would likely have provided admissible testimony pursuant to the hearsay exception for declarations against the penal interest of the person who had confessed. Id. at 299-300, 93 S. Ct. at 1048, 35 L. Ed. 2d at 311-12.
The Supreme Court commented that the "voucher rule" was "condemned" and "rejected," id. at 297 n.8 & n.9, 93 S. Ct. at 1046 n.8 & n.9, 35 L. Ed. 2d at 310 n.8 & n.9, and it held that, in the factual circumstances described, application of the hearsay rules in conjunction with Mississippi's "voucher rule" violated the defendant's right to due process under the Fourteenth Amendment. Id. at 302, 93 S. Ct. at 1049, 35 L. Ed. 2d at 313. Chambers, in sum, was based on uncommon facts, and it did nothing to disturb the general rule that "the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Ibid.
The Supreme Court later adverted to the limitations of its holding in Chambers. It said in Montana v. Egelhoff, 518 U.S. 37, 53, 116 S. Ct. 2013, 2022, 135 L. Ed. 2d 361, 374 (1996):
the holding of Chambers — if one can be discerned from such a fact-intensive case — is certainly not that a defendant is denied "a fair opportunity to defend against the State's accusations" whenever "critical evidence" favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.Unlike Chambers, the basis for excluding Detective Brennan's proposed hearsay testimony in this case was application of our well-tested and commonly accepted rules of evidence, in particular, the hearsay rule and its exceptions.
Furthermore, nothing in the record established that Cook's description of the shooter was reliable. There was no information about her ability to see the shooter in the dark from six houses away, how long she had observed him, and whether she had any motive to provide inaccurate information. There was no other indication of her reliability in communicating what she saw or of her general trustworthiness. The fact that she was uncooperative in the police investigation also cast doubt upon the reliability of her out-of-court statement to the police on the night of the shooting.
Our Supreme Court has recently discussed the inherent unreliability of identification evidence. See State v. Henderson, 208 N.J. 208, 230-79 (2011), and State v. Delgado, 188 N.J. 48, 63-66 (2006). Admission of hearsay evidence relevant to identification of a shooting suspect, without the ability to examine the witness in the courtroom, would not enhance the truth-finding function of the court. The trial judge correctly barred the proposed cross-examination of Detective Brennan as hearsay under the New Jersey Rules of Evidence.
With respect to defendant's aggregate twenty-five-year sentence, defendant cites State v. Copling, 326 N.J. Super. 417 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000), and argues that his sentence on the charge of possession of a firearm without an identification card should have been made concurrent with the sentence for aggravated assault. In Copling, we held that a five-year sentence for possession of a handgun without a permit was improperly made consecutive to a life sentence for murder because the defendant's "objectives and purpose" in possessing the gun were the same as in committing the homicides. Id. at 441-42. The State has not addressed the holding of Copling.
Here, the evidence was that defendant was handed the rifle immediately before shooting the victim. No evidence supported a finding that defendant possessed the rifle at any other time, and the trial judge did not explicitly state his reasons for imposing a consecutive five-year sentence on the weapons charge under the factors listed in State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Therefore, we conclude that, like Copling, 326 N.J. Super. at 441-42, defendant's "objectives and purpose" in possessing the gun were the same as in committing the aggravated assault. The two terms of imprisonment imposed on the indictment in this case should not run consecutively.
Otherwise, we find no abuse of discretion in the sentence imposed, including its running consecutively to the sentence imposed upon defendant for his earlier conviction. See State v. Roth, 95 N.J. 334, 364-66 (1984).
The jury's verdict is affirmed. We remand to the trial court for imposition of concurrent sentences on the merged charges contained in counts one through four and on count five of the indictment. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION