Opinion
DOCKET NO. A-5792-13T3
03-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY J. GIBBS, a/k/a GREG NICE, Defendant-Appellant.
Solmaz F. Firoz, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Firoz and John Douard, Assistant Deputy Public Defender, of counsel and on the briefs). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, Rothstadt and Currier. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-07-1963. Solmaz F. Firoz, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Firoz and John Douard, Assistant Deputy Public Defender, of counsel and on the briefs). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from his sentence and convictions for first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count one); possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count two); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); and possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count four). These charges arise from the fatal shooting of Chikki Smith, who was shot in the back four times. Defendant raises the following issues in his appeal:
POINT I
THE COURT ERRED BY FORCING DEFENDANT, WHO WAS WEARING RESTRAINTS AND PRISON GARB, TO PARADE BEFORE THE JURY TO DISPLAY HIS TATTOOS THAT SUGGESTED DANGEROUSNESS AND PRIOR BAD ACTS, ESPECIALLY BECAUSE PHOTOS OF THE TATTOOS HAD ALREADY BEEN DISPLAYED TO THE JURY, AND THE COURT DID NOT ISSUE LIMITING OR CURATIVE INSTRUCTIONS TO THE JURY REGARDING THE TATTOOS OR PRISON GARB. (PARTIALLY RAISED BELOW)
A. DEFENDANT'S TATTOOS.
B. DEFENDANT'S CLOTHING DURING TRIAL.
POINT II
DURING THE JURY CHARGE ON IDENTIFICATION, THE JUDGE IMPROPERLY HIGHLIGHTED THE CIRCUMSTANTIAL EVIDENCE THAT THE STATE HAD PRESENTED TO PROVE DEFENDANT WAS GUILTY.
POINT III
THE COURT ERRED BY NOT ISSUING A CURATIVE INSTRUCTION TO THE JURY
WHERE NUMEROUS GRUESOME AUTOPSY PHOTOGRAPHS WERE DISPLAYED TO THE JURY BEFORE THE COURT RULED THAT SOME WOULD NOT BE ADMITTED INTO EVIDENCE DUE TO THEIR UNDULY INFLAMMATORY NATURE. (NOT RAISED BELOW).
POINT IV
THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES FOR MURDER AND UNLAWFUL POSSESSION OF A WEAPON.
In his pro se supplemental brief, defendant presented the following argument:
POINT I
THE COURT ERRORS RAISED HEREIN AND IN COUNSEL'S BRIEF CUMULATIVELY CREATED A TRIAL SETTING THAT WAS FUNDAMENTALLY UNFAIR AND A DENIAL OF DUE PROCESS AND A NEW TRIAL MUST BE GRANTED.
After reviewing these arguments in light of the record and applicable legal principles, we conclude that the challenges to defendant's convictions lack merit and that the argument raised in his supplemental pro se brief lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we also conclude that the matter must be remanded for re-sentencing.
I.
Lieutenant Justin Furman of the Atlantic County Prosecutor's Office (ACPO) responded to Sam's Rialto Bar in Pleasantville with his homicide team on December 3, 2012. Video surveillance cameras captured the shooting in the parking lot as well as movements of the victim and defendant inside the bar.
The video footage from inside the bar showed an African-American male wearing a hood and a jacket with a distinctive insignia on the back. Lieutenant Furman described the jacket:
It appeared to have some sort of design on the back, possibly a dragon with flames . . . . It had writing across the shoulder blades, a design on the back with fire coming out of it. It was distinct from anything else we observed on the surveillance video, and that was the reason to search for that jacket.
Surveillance footage from the parking lot showed the male wearing the distinctive jacket shoot Smith in the back and leave the scene in a Ford Explorer. The video does not show the face of the shooter.
At trial, the jury viewed a composite of the surveillance videos as well as still photographs derived from the recordings. Detective Christopher Hallett of the ACPO identified "the black male . . . with the hood on with the jacket with the insignia on the back of it" in the bar as "the person that [the jury would] want to follow throughout the video." He also identified the victim in the videotape taken of the bar parking lot.
Lieutenant Furman testified that the videotape showed the victim leave the bar through the rear door into the parking lot. He walked past defendant, who was standing with R.B. and T.N. near a green Ford Explorer. The shooting occurred when defendant came "in behind" the victim. No one in the parking lot identified defendant as the shooter.
We use initials for persons not charged in this offense to protect their privacy.
The owner of the bar, J.H., knew defendant as a customer and identified him in court. He stated defendant has a distinguishing mark, a teardrop-shaped tattoo on his face. J.H. remembered seeing defendant in the bar on the night of the shooting and that defendant was wearing a "black jacket with some type of like sequins or something on the back."
Lieutenant Furman reviewed the surveillance footage to look for tattoos and markings on defendant. Still photographs taken from the footage inside the bar showed defendant had a marking under his right eye, but Lieutenant Furman could not ascertain what the marking was from the photograph. Other photographs taken from inside the bar show markings on the tops of his right and left hands as well as on his right upper cheek. In a photograph taken from the surveillance video outside the bar, defendant is leaning against a white car in the parking lot at 11:43 p.m., the marking on the right side of his face visible.
Defendant was interviewed following the shooting and waived his Miranda rights. Defendant admitted he was depicted in still photographs taken from video surveillance footage inside the bar. He also admitted he was present in the parking lot of the bar on the night of the shooting but denied any involvement.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Photographs taken of defendant following his arrest showed that he has a teardrop tattoo coming near the corner of his right eye and another tattoo underneath that, with words in blue or black ink. Photographs of his hands showed that defendant had tattoos on the tops of both hands. Sergeant Ian Finnimore of the ACPO testified that the tattoo on the right hand appeared to say "RIP monster" and the tattoo on the left hand "appears to be the letters BPP in Black Panther Party underneath it in script."
Defendant's girlfriend, D.A., owns a green 2002 Ford Explorer similar to that shown in the surveillance footage. After she provided a written consent to search, officers recovered the distinctive jacket described by Lieutenant Furman at her residence.
D.R., a friend of the victim, was present at the bar with him that night. When interviewed by detectives, he stated he did not witness the shooting. He identified a photograph of defendant from the surveillance photos as "Vito," one of the individuals in the parking lot on the night of the shooting, and said he also knew him as "Greg Nice." At trial, D.R. denied knowing anyone named Gregory Gibbs and said he did not see "Vito" anywhere in the courtroom. None of the witnesses present in the parking lot at the time of the shooting identified defendant as the shooter.
The State also presented evidence that defendant had never been issued a permit to carry a firearm in the State of New Jersey.
II.
In Point I, defendant argues the trial court erred in requiring him to display his tattoos to the jury, having him appear in prison garb at trial and failing to give a curative instruction. As a preliminary matter, we note that, while defense counsel objected to defendant displaying his tattoos to the jury, there was no objection to his appearing in prison garb and no request for a curative instruction. We have carefully reviewed the record in light of these allegations and conclude these arguments lack merit.
Defendant also contends he was in restraints when he was instructed to show the jury his tattoos. The record does not reflect he was in restraints and defendant has identified no citation to the record that shows otherwise.
A.
The record provides compelling proof that defendant was dressed in prison garb not because he was forced to do so but rather as a result of his repeated rejection of the court's efforts to have him appear in civilian clothing.
Because we recognize that "a defendant's outward appearance can threaten the fairness of proceedings," the State cannot "compel an accused to stand trial before a jury while dressed in identifiable prison clothes." State v. Maisonet, 166 N.J. 9, 17 (2001) (citing Estelle v. Williams, 425 U.S. 501, 504-05, 96 S. Ct. 1691, 1693, 48 L. Ed. 2d 126, 130-31 (1976)). Our courts require trial judges to personally question criminal defendants who appear in prison garb for a jury trial
concerning their desire to relinquish the right to appear in civilian clothing and that this right should be given up only by means of a knowing, intelligent and voluntary waiver on the record before the trial judge.
[State v. Carrion-Collazo, 221 N.J. Super. 103, 112 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988).]
While a defendant "does not have the right to dictate to the court which civilian clothing he will wear," he does have "a right not to appear in civilian clothing that may appear distasteful or disrespectful to a reasonably objective juror." State v. Herrera, 385 N.J. Super. 486, 498-99 (App. Div. 2006) (citation omitted). Therefore, a determination that a defendant has knowingly, intelligently and voluntarily waived his right to appear in civilian clothing
must include an assessment of whether the civilian clothes that defendant rejected were of reasonably suitable quality, cleanliness and design. A trial judge should not require an indigent defendant to go to trial in his prison garb unless and until the judge determines that the defendant was offered, and rejected, civilian clothes that were reasonable and adequate under the circumstances.
[Id. at 500 (citation omitted).]
Prior to jury selection, the trial judge placed defendant's "position with his clothing" on the record. That morning, defendant told his attorney that his girlfriend planned to drop clothing off at the jail for him and that those were the only clothes he wished to wear. The clothing had not yet arrived. Defendant was offered clothing at the jail, but it was "not acceptable" to him. When defendant arrived at the courthouse, he was offered additional clothing options. Defendant rejected the first suit, claiming the size was too small. Larger-sized clothing was located, but he would not try it on. Defendant refused to tell his attorney what clothing size he desired so that more options could be presented to him.
When the court questioned defendant on the matter, he stated he did not want to wear the clothing at the jail because it had "years of dust on it, years of mold on the clothes." Defendant was urged further and advised that if he appeared "in front of a jury in orange clothing, they're going to know you're in jail, they're going to think you're a bad guy because you're wearing jail garb." However, when given the choice between selecting some of the clothing offered or going forward in orange clothing, defendant stated, "I'll go in orange, your Honor, that's no problem." The judge persisted, "You don't even want to try this stuff on?" Defendant replied that he had tried on everything offered. His counsel informed the court that he did not see defendant try on anything from the second batch of clothing options. The court then ordered defendant to go try on the clothing so that someone could observe whether or not the items fit. After a recess, the sheriff's officer said defendant refused to try on any of the clothing. After defendant confirmed he had refused, the following exchange took place:
THE COURT: Okay. We're going to try this case with you in orange, then. Is that what you want to do?
[DEFENDANT]: I'll pick my jury in orange.
THE COURT: Okay. . . . I think the record is sufficient under State v. Herrera that what the defendant has done constitutes waiver of his right to be clothed in non-jail garb. I think we made every reasonable
accommodation that could be made under the circumstances.
Later that morning, before the potential jurors entered the courtroom, the judge placed on the record that he personally inspected the clothes offered to defendant and noted they were all high quality, some being designer brand names, and it appeared that the clothing would fit defendant.
The trial commenced the next day, April 15, 2014. The court was informed that D.R., a witness for the prosecution, who was incarcerated, refused to get dressed in "plain clothes or street clothes." When D.R. appeared, defendant told the court he was wearing the clothes that were dropped off at the jail for defendant. The clothing had been dropped off the previous night, after the jury was selected. The sheriff reported that although D.R. previously refused to get changed, he put on defendant's clothing when it was offered to him because it was clean. Defendant said he wanted to change into the clothes D.R. was wearing, but the judge denied his request, stating, "any damage that's been done has been done." The judge declined to delay the trial further to allow defendant to change into the witness's clothing. The judge also commented that the clothing defendant was offered, which included designer suits, was more appropriate than the jeans, plaid shirt, and sweater that D.R. was wearing.
On the third day of the trial, defendant appeared in court wearing the clothing D.R. had worn two days earlier. The court cautioned defendant that if the jurors recognized the clothing, they might conclude D.R. failed to identify him in court because there was a connection between them. Defendant was adamant about wearing the clothing.
The transcript does not reflect what clothing defendant wore on the second day of trial. --------
The record therefore convincingly shows that defendant was not compelled to wear prison garb at trial. We are further satisfied that the trial judge's continuing efforts fully satisfied the dictates of Carrion-Collazo and Herrera. Despite defendant's lack of cooperation, the court continuously attempted to have defendant appear in civilian clothing, going so far as to order him to try on suits after he stated he would proceed in prison garb. The court also personally inspected the clothing offered to defendant and placed on the record that they were of high quality and appropriately sized. The court warned defendant of the potential adverse inference the jurors could draw from his appearing in prison garb. Despite being fully warned, defendant stated twice that he wished to proceed wearing orange clothing.
We also reject defendant's argument that the court committed plain error, R. 2:10-2, in failing to give the jury a curative instruction regarding his attire. "A precautionary voir dire or jury charge" regarding a defendant's choice to proceed to trial wearing prison garb is only mandated when requested "by a defendant or his counsel." Carrion-Collazo, supra, 221 N.J. Super. at 113.
B.
Photographs of defendant's tattoos were admitted into evidence and published to the jury without objection. When Sergeant Finnimore testified regarding the tattoos, the prosecutor asked the court to have defendant display his tattoos to the jury, stating he was concerned defendant was too far away for the jury to see that he had the tattoos described. Defense counsel objected on the ground that the display of defendant's tattoos would be cumulative.
On the following day, when defendant was to walk to the jury box, defense counsel objected to a display of the tattoos on defendant's hands because there had been no reference to those tattoos in the testimony. Counsel said, "My concern is that one of those tattoos could be interpreted as a gang symbol and I don't know that the prosecutor is suggesting that's going to be an identifying factor." He contended, "it's prejudicial to introduce that at this point." Accordingly, the trial judge limited the tattoo display to those on defendant's face. He also instructed the jury,
Members of the jury, at this point I'm going to allow that the defendant approach the jury box so that you can observe his right side of his face where it is alleged that there are tattoos by prior evidence you heard in the case, so you can make that determination yourself. . . . [T]he sheriff's office requires that when someone is in custody, that they be accompanied as they move around the courtroom. Once again, I instruct you please do not consider that as evidence that he's a dangerous man or that he's probably guilty of this charge because of that situation. That is not it at all. I can't stress that more strongly to you, so please derive no prejudice from the fact that he's accompanied by an officer when he approaches you, okay.
The prosecutor renewed his request to have defendant show the tattoos on his hands after Lieutenant Furman testified regarding those tattoos. Noting that ten photographs of defendant's hands had been admitted into evidence and discussed in witness testimony, defense counsel objected, stating, "This is becoming cumulative." The trial judge granted the State's request. No further instruction was requested or given.
For the first time on appeal, defendant argues the trial judge should have treated the "tattoo evidence" as evidence of other crimes, wrongs or acts, N.J.R.E. 404(b), and subjected this evidence to the analysis required by State v. Cofield, 127 N.J. 328, 338 (1992). This argument has no merit.
Defendant cites no authority for his foundational premise that a tattoo in and of itself constitutes evidence of other crimes, wrongs, or bad acts. There was no evidence at trial that this was a gang-related killing or that any of defendant's tattoos represented either gang affiliation or evidence he committed another crime. Unlike State v. Goodman, 415 N.J. Super. 210, 227 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), where the State sought to submit evidence to prove gang membership, the prosecutor did not suggest this was a gang-related killing. In fact, the prosecutor stated there appeared to be no motive at all for the shooting — that it was a "random act[] of violence." Moreover, the testimony and evidence regarding defendant's tattoos were strictly limited to identification. Therefore, there was no basis for the court to sua sponte conduct a N.J.R.E. 404(b) analysis or issue a limiting instruction.
Defendant next argues, as he did at trial, that the display to the jury was unnecessarily cumulative because the pictures of defendant's tattoos were already in evidence. He maintains the in-person display of the tattoos "had little probative value" and "was done in an extremely prejudicial manner," depriving him of a fair trial.
Pursuant to N.J.R.E. 403, otherwise admissible evidence can still be excluded "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."
"[A]ppellate review of a trial court's application of the balancing test of N.J.R.E. 403 . . . is subject to the abuse of discretion standard, which sustains the trial court's ruling unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted."
[State v. Lykes, 192 N.J. 519, 534 (2007) (alteration in original) (citation omitted).]
Here, the court explained it was permitting the display of the tattoos to allow the jury to decide for itself if defendant had the same tattoos as the shooter in the video. We acknowledge that the probative value of the display is debatable. The photographs taken of defendant's tattoos after his arrest were published to the jury and in evidence, and defendant admitted he was depicted in the photographs taken from the surveillance video inside the bar. However, under the facts of this case, we are unable to discern how the in-person display of the tattoos prejudiced the defendant. We therefore conclude the court's action did not reflect a palpable abuse of its discretion that "was so wide [of] the mark that a manifest denial of justice resulted." See Lykes, supra, 192 N.J. at 534 (alteration in original).
We also find any error to be harmless. For the argument to succeed, we would have to conclude there was "some degree of possibility" the alleged error led to an unjust result. State v. R.B., 183 N.J. 308, 330 (2005) (citation omitted). "The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." Ibid. (citation omitted). The defense here was that defendant was not the person who shot Smith in the parking lot. The evidence supporting the conclusion that he was the shooter was compelling. Thus, even if the court did improperly allow the display, the error was harmless as there is no reasonable possibility, in light of the weight of the evidence, that the additional showing of the tattoos affected the jury's verdict. See ibid.
III.
The trial judge modified the model jury charge on identification to include references to circumstantial evidence in the case. The charge advised the jury it may consider "circumstantial evidence [of identification] . . . in the forms of clothing seen in the video by the alleged perpetrator, the jacket allegedly seized from the defendant's alleged residence, and the motor vehicle driven away from the shooting." Defense counsel objected to the court's modification and argues the judge "went too far" by "highlighting" the State's circumstantial evidence in the jury instructions, giving the jury the impression he "favored or was advocating for the State's case and believed that circumstantial evidence established defendant's guilt." He also claims the instructions were "one-sided" and failed to account for "the defense's theory." However, defendant offers no "theory" that was requested or should have been included in the charge to support a conclusion that the evidence cited was not probative of identification.
"The standard for assessing the soundness of a jury instruction is how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole." State v. Savage, 172 N.J. 374, 387 (2002) (alteration in original) (citation omitted). "In reviewing instructions to the jury, a court must not isolate the language challenged but must examine the remark in the context of the entire charge. The effect of the purportedly-erroneous charge must be evaluated in light of the totality of the circumstances." State v. DiFrisco, 137 N.J. 434, 491 (1994) (citations omitted), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
Generally, "[t]rial courts have broad discretion when commenting on the evidence during jury instruction." State v. Brims, 168 N.J. 297, 307 (2001). Commentary on perceived strengths or weaknesses of the evidence should be avoided, State v. Robinson, 165 N.J. 32, 41-45 (2000), since "commenting on the relative strengths or weaknesses of the identification is best left to the attorneys rather than the judge." State v. Swint, 328 N.J. Super. 236, 260-61 (App. Div.), certif. denied, 165 N.J. 492 (2000). However, we draw a distinction between commenting on the probative nature of evidence and "tailoring the jury charge to the facts of the case," which we have "regularly" deemed important. See Savage, supra, 172 N.J. at 389. A trial court is "free to add specific factual references to the identification instruction when necessary for clarity or when the court concludes that such references are required in the interest of justice." Robinson, supra, 165 N.J. at 45.
Here, the charge in its entirety reflects no prejudicial error. The judge listed the evidence the State presented for identification purposes; he did not comment on its strength or weakness. He prefaced his reference to each piece of circumstantial evidence by saying it was "alleged," thereby not usurping the jury's role in determining the facts. He immediately instructed the jurors that if the referenced evidence did not prove beyond a reasonable doubt that defendant committed the crimes, they must acquit defendant. The judge then instructed that even if the jury found the State met its burden as to identification, it was still required to prove each and every element of each crime before defendant could be found guilty. Thus, when read in the context of the entire charge, the judge's mere listing of the circumstantial evidence did not in any way favor or endorse the State's case.
Defendant's argument that the instructions were "one-sided" and failed to present the "defense's theory" also lacks merit. There was no "defense theory" beyond defendant's general denial of guilt, which was addressed by the jury charge, and his position that the videotape and circumstantial evidence were insufficient for identification. In short, the trial judge did not err by modifying the charge to tailor it to the evidence at trial.
IV.
The State projected several autopsy photographs on a screen during the testimony of the forensic pathologist. Defendant did not object to the display. The prosecutor moved to have all the photographs admitted into evidence. Defendant did not object.
The judge admitted only seven of the fourteen photographs, stating he considered the remaining photographs to be "unduly inflammatory in terms of what they depict. More specifically, they depict open wounds, and as to [one], internal organs . . . and very, very bloody." The judge noted that the jury had seen all the photographs when they were projected, but observed, "the quality was extremely poor on the projection, very dark. Frankly, I had a hard time making any detail out, so I don't know that the jury having seen them already would have unduly prejudiced them."
Immediately following his decision, the judge asked defense counsel if he had "anything to bring to the Court's attention." He replied, "Not at this time, your Honor."
In Point III, defendant argues the trial judge committed plain error in failing to provide a curative instruction sua sponte after the autopsy photographs were shown to the jury. We review allegations of plain error pursuant to Rule 2:10-2, to determine whether the alleged error "is of such a nature as to have been clearly capable of producing an unjust result." The alleged error lacks that capacity.
In addition to posing no objection to the admission of the photographs and declining the court's invitation to request curative action, defendant made no objection to the final jury charge. Thus, it is fair to presume that defense counsel perceived no error from the display of the photographs during the pathologist's testimony. See Swint, supra, 328 N.J. Super. at 257.
Contrary to defendant's assertion, the fact that the jury saw the photographs prior to them being admitted into evidence does not inevitably constitute reversible error. See, e.g., State v. Faucette, 439 N.J. Super. 241, 267-68 (App. Div.) (noting, without disapproval, a trial judge's decision to allow autopsy photographs to be used as "a demonstrative aid to the coroner's testimony" even though the photographs were not admitted into evidence), certif. denied, 221 N.J. 492 (2015).
The trial judge acknowledged that the jury had already seen the photographs and reasoned it was unlikely the projected version of the pictures caused any prejudice because of their poor, dark quality. We accept his assessment of the potential for prejudice and, in the absence of any request, infer that the absence of a curative instruction reflects a determination, in the exercise of his discretion, that one was unnecessary. See State v. Loftin, 146 N.J. 295, 365-66 (1996) ("The determination of whether the appropriate response is a curative instruction, as well as the language and detail of the instruction, is within the discretion of the trial judge 'who has the feel of the case and is best equipped to gauge the effect of . . . prejudic[e] . . . on the jury in the overall setting.'" (quoting State v. Winter, 96 N.J. 640, 647 (1984)). Moreover, during the general jury charge, the court defined what constituted evidence the jury could consider and instructed the jury that exhibits not admitted into evidence could not be considered.
In sum, considering defendant's failure to object, the court's determination that the projected display of the pictures was not prejudicial, the court's instructions to the jury, and the strength of the State's case, State v. Chapland, 187 N.J. 275, 289 (2006), there was no plain error.
V.
The trial court sentenced defendant to life in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), on count one (first-degree murder); a consecutive sentence of twenty years with a ten-year parole ineligibility period pursuant to the Graves Act, N.J.S.A. 2C:43-6, on count three (unlawful possession of a weapon); and a concurrent term of ten years with a five-year period of parole ineligibility on count four (possession of a weapon by a convicted felon). Count two (possession of a weapon for an unlawful purpose) was merged into count one. Defendant argues that the trial court erred in imposing consecutive sentences because the court failed to perform the required analysis of the factors set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We agree.
In Yarbough, the Court adopted criteria as general sentencing guidelines for the determination whether to impose concurrent or consecutive sentences. Id. at 644-45. The Court instructed trial courts to focus on "five facts relating to the crimes":
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
[State v. Molina, 168 N.J. 436, 441-42 (2001) (quoting Yarbough, supra, 100 N.J. at 644).]
In determining a consecutive sentence was appropriate here, the trial judge only observed that the offenses of murder and unlawful possession of a firearm were separate offenses and that there were no free crimes. He did not assess the factors relating to (b), (c) and (d).
It is "crucial to the appellate review process" that a trial court "give 'a separate statement of reasons for its decision to impose consecutive sentences.'" Ibid. (quoting State v. Miller, 108 N.J. 112, 122 (1987)). "The Yarbough guideline that provides the clearest guidance to sentencing courts faced with a choice between concurrent and consecutive sentences is the third guideline, which focuses on the 'facts relating to the crimes.'" State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Rogers, 124 N.J. 113, 121 (1991)).
"The 'no free crimes' guideline does not require the court automatically to impose consecutive sentences for multiple offenses." Rogers, supra, 124 N.J. at 121. Concluding the "no free crimes" guideline alone mandates consecutive sentences would render the remaining enumerated factors meaningless, which contradicts our Court's instruction to consider the five "facts relating to the crimes" factors listed in guideline three. Id. at 121; see State v. Copling, 326 N.J. Super. 417, 441-42 (App. Div. 1999) (rejecting the argument that the "objectives and purposes" of the crimes of murder and unlawful possession of a weapon are inherently different and involve multiple victims, always warranting consecutive sentencing), certif. denied, 164 N.J. 189 (2000).
We are constrained to conclude that the statement of reasons provided here fell short of assessing factors clearly relevant to the decision to impose consecutive rather than concurrent sentences. Therefore, a remand is necessary to permit the court to conduct the required analysis.
We affirm defendant's convictions, reverse his sentence and remand for re-sentencing. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION