Opinion
DOCKET NO. A-3899-12T1
04-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEFFERY GILLIAM, a/k/a STEPHEN MYERS, JEFFY GILLIAN, JEFFREY GILL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 12-04-0728. Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant, Jeffery Gilliam, appeals from a conviction after a trial by jury. On appeal, Gilliam argues the trial court erred in denying a motion for acquittal, in the jury instructions and in failing to bifurcate the two counts of the indictment. We have considered Gilliam's arguments, in light of the record and the applicable law, and find them to be without merit. We affirm.
Ocean County Indictment No. 12-04-0728 charged Gilliam with fourth-degree harassment while incarcerated contrary to N.J.S.A. 2C:33-4e (count one) and third-degree stalking while serving a term of imprisonment for conviction of N.J.S.A. 2C:15-2a(1), contrary to N.J.S.A. 2C:12-10b (count two). After a two-day trial, the jury convicted Gilliam of harassment and acquitted him of stalking. Gilliam was sentenced to 180 days in jail, consecutive to a prior conviction on unrelated charges.
On appeal, Gilliam argues:
POINT I
BECAUSE THE CREDIBLE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF HARASSMENT, THE TRIAL COURT SHOULD HAVE GRANTED DEFENSE'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THAT COUNT. U.S. CONST. Amend. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT II
THE TRIAL COURT INSTRUCTED THE JURY ON A CRIME FOR WHICH THE DEFENDANT WAS NOT INDICTED. (Not raised below)
POINT III
BECAUSE INFORMING THE JURY THAT THE DEFENDANT WAS INCARCERATED WHEN THIS INCIDENT OCCURRED WAS SO PREJUDICIAL THAT IT
DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL, THE MATTER SHOULD HAVE BEEN BIFURCATED. (Not raised below)
While incarcerated in state prison, Gilliam engaged in a pattern of letter writing and phone calls directed at his former sister-in-law, C.Q., and her husband. The letters produced at trial were angry in tone, laced with profanity and implicitly, if not explicitly, threatening. The phone calls were similar in context and nature.
At the core of Gilliam's conduct was that C.Q. had custody and sought guardianship of Gilliam's daughter, Ann, after the death of the child's mother, D.F., C.Q.'s sister and Gilliam's wife, in January 2007.
The daughter's name is fictitious for the purpose of confidentiality.
Prior to her death, D.F. asked C.Q. to raise Ann, as well as three of her other children from a previous marriage. C.Q. and her husband agreed. After D.F.'s death, three of her four children, including Ann, resided with C.Q. Thereafter, C.Q. and her husband sought guardianship upon notice to Gilliam. During this time, Gilliam was incarcerated, serving a twenty-five year sentence subject to a ten-year parole disqualifier imposed in 1999.
Upon receiving notice, Gilliam commenced the pattern of letter writing and collect telephone calls to C.Q. The telephone calls were not accepted although the messages were saved. Initially, C.Q. read the letters in front of the children, then tore them and discarded them. However, when the letters' content appeared to adversely impact Ann, C.Q. contacted the prison and requested that Gilliam be stopped from sending them.
The letters ceased for a time but then resumed bearing a different return address as Gilliam had been transferred to another prison. The letters were addressed as though C.Q. and her husband were attorneys to disguise the recipients of the correspondence from prison officials and to be sent "uncensored." The letters included references to Gilliam's intent to enlist assistance from others in furtherance of his ire with C.Q. and her husband. One letter, dated July 16, 2011, included the following:
Do you think I give a [expletive] about anybody has to say about me writing you. Listen, you dumb bitches, I been locked up 13 years, it ain't nothing they can do to me, I'm out in 18 months regardless. But what they can do, is after I do the deed, they can come to me, but not before. But you don't have to wait that long B/C my cousin goes to Jackson also just like your youngest. He going to give your son a DVD that my family wanted you to have. Well sister and brother in law, I'll write you
again soon after you get the DVD, let me and your lawyer know what you think of it.
[C.Q.] you drive safely you Lakewood not too safe with all them gangmembers. [sic]
After receiving these letters, C.Q. and her family were subjected to various acts of vandalism and other suspicious activity including damage to their automobile and unknown individuals rifling through their mailbox and knocking on Ann's bedroom window during the night.
In response, C.Q. and her family altered their lifestyle by, among other steps, moving the children's bedrooms to a second floor, acquiring two large dogs, installing a security system and requiring the children to report their whereabouts. The concerns for their safety were reported to the local police. Ann eventually moved out and now lives with another relative.
I
A defendant's motion for a judgment of acquittal at the close of the state's case is governed by Rule 3:18-1, which authorizes the court to enter a judgment of acquittal on one or more offenses charged "if the evidence is insufficient to warrant a conviction." The standard applied is:
[W]hether the evidence at that point is sufficient to warrant a conviction of the charge involved. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or
circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-59 (1967) (internal citation omitted).]
After the State rested, Gilliam sought acquittal of the harassment count. Gilliam's motion addressed both subsection (a) and subsection (c) of the statute. The court denied the motion.
We note that the argument for acquittal directed at both subsections (a) and (c) is at odds with the argument raised by Gilliam in Point II herein.
In reviewing a motion for a judgment of acquittal, we apply the same standard as the trial court. State v. Moffa, 42 N.J. 258, 263 (1964).
Pursuant to N.J.S.A. 2C:33-4, "a person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
. . . .
c. Engages in any other course of alarming conduct or of repeatedly committed acts with
purpose to alarm or seriously annoy such other person.
Pursuant to subsection (e) of the statute, "[a] person commits a crime of the fourth degree if, in committing an offense under this section, he was serving a term of imprisonment . . . as the result of a conviction of any indictable offense under the laws of this State . . . ."
Gilliam argues the State failed to prove he had the purpose to harass as he was "simply trying to find out what happened with his family." He also contends that his actions and behavior in communicating with C.Q. and her husband were not consistent with harassment.
The State was required to prove that Gilliam acted with a purpose to harass and committed an act prohibited by N.J.S.A. 2C:33-4. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:33-4 (2012). Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "'A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.'" State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). There must be proof that a defendant's conscious object was to "harass," that is, "'annoy,'" "'torment,'" "'wear out,'" or "'exhaust.'" State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. See State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).
"A finding of a purpose to harass may be inferred from the evidence presented[,]" and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577 (citations omitted). Because direct proof of intent is often absent, "purpose may and often must be inferred from what is said and done and the surrounding circumstances[,]" and "[p]rior conduct and statements may be relevant to and support an inference of purpose." Castagna, supra, 387 N.J. Super. at 606 (citations omitted); see also State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995) ("While [the appellate court] might or might not have made the same inferences, [its] role is one of determining whether the trial judge's inferences were rationally based on evidence in the record.").
The totality of circumstances presented in the State's case support a finding that Gilliam engaged in a course of conduct intended to alarm and annoy C.Q. and her husband. Gilliam knew contact was unwelcome at best. After being prevented from making contact when C.Q. contacted prison officials, he engaged in subterfuge by addressing the letters as though being sent to an attorney to assure his communications would reach their intended "target."
We conclude the record supports the finding that the State satisfied its Reyes burden.
II
For the first time on appeal, Gilliam argues that the trial court erred by incorporating into the jury charge language from the statute not contained in the indictment. During the trial, there were no objections to the charge prior to or after it was given.
The judge stated on the record prior to summations that "[T]he jury charge has been given to both attorneys. We've gone over that, there are no objections at this point. I will ask again after the charge is given to the jury if the attorneys have any objection." While there is reference to a charge conference, it was either not held on the record or no transcription of the conference was provided. See Rule 1:8-7(b). Nonetheless, given the judge's statement, we perceive no prejudice to Gilliam if the conference was not on the record in conformance with the Rule.
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As a result, we review the charge to determine whether there was plain error "clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Afandador, 151 N.J. 41, 54 (1997); State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009). The possibility of any unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
"Nevertheless, because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are 'poor candidates for rehabilitation under the plain error theory.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
The judge instructed the jurors to consider both subsections (a) and (c) of the statute in conjunction with subsection (e). The indictment referenced subsections (c) and (e). Gilliam argues that by the judge's "addition of an unindicted section of the harassment statute and his convoluted instruction to the jury," it acted to impact the verdict. Gilliam also argues that charging the jury for different conduct for which he was not indicted constituted error.
At the outset, we agree with Gilliam's argument that subsections (a) and (c) of the statute require different proof of conduct. The focus of subsection (a) is on the mode of communication. Only one incident could provide the basis for a violation, "as long as defendant's purpose in making it . . . was to harass" and was made in a "manner likely to cause annoyance or alarm to the intended recipient." J.D. v. M.D.F., 207 N.J. 458, 477 (2011). Under subsection (c), a violation requires proof of a course of conduct that "is alarming or . . . a series of repeated acts if done with purpose 'to alarm or seriously annoy' the intended victim." Id. at 478.
Thus, a defendant could be found guilty of one offense and not the other as they are "not dependent upon each other and are different." State v. Burten, 219 N.J. Super. 339, 344 (Law Div. 1986), aff'd o.b., 219 N.J. Super. 156 (App. Div.), certif. denied, 107 N.J. 144 (1987). "Each of th[e] [two] subsections is 'free-standing, because each defines an offense in its own right.'" State v. Hoffman, supra, 149 N.J. at 576 (quoting State v. Mortimer, 135 N.J. 517, 525 (1994)). Gilliam argues that since the relevant subsections of N.J.S.A. 2C:33-4 are independent and define separate offenses, it was error for the court to instruct the jury on the unindicted subsection (a). However, when Gilliam's argument is considered in the context of due process, i.e., notice and opportunity to be heard, it is unavailing.
Rule 3:7-3(a) governs the contents of an indictment in New Jersey the following way:
The indictment or accusation shall be a written statement of the essential facts constituting the crime charged . . . . It may be alleged in a single count either that
the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state the official or customary citation thereof, but error in the citation or its omission shall not be ground for dismissal or the indictment or accusation or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant . . . .
[Emphasis added.]
An indictment must be sufficient "to enable a defendant to know that against which he must defend; to prevent an accusation in derogation of our interdiction of double jeopardy; and to preclude substitution by a trial jury of an offense for which the grand jury has not indicted." State v. Spano, 128 N.J. Super. 90, 92 (App. Div. 1973), aff'd, 64 N.J. 566, 569 (1974). However, the principles enunciated in Spano are "not applied rigidly." State v. Branch, 155 N.J. 317, 324 (1998). Rather, they are "sufficiently flexible to permit a defendant to be found guilty of an offense not charged in the indictment." Ibid. For example, "a defendant may be convicted as an accomplice even if the indictment does not expressly so charge." Pressler & Verniero, Current N.J. Court Rules, comment 1.2.1 on R. 3:7-3 (2015).
It is clear, however, that "[a] jury may not convict on a theory of guilt not advanced by the State at trial and not charged by the court." State v. Burnett, 245 N.J. Super. 99, 105 (App. Div. 1990), certif. denied, 126 N.J. 340 (1991). "A conviction of an offense for which a defendant is not charged and which is not a lesser included offense of that designated in the complaint cannot stand." State v. Koch, 161 N.J. Super. 63, 67 (App. Div. 1978).
In Koch, the defendant's conviction was reversed. The Law Division, in entertaining a de novo appeal of a municipal court's judgment of guilt for a traffic violation, amended the defendant's criminal complaint on its own motion to charge a different, and far more serious offense, than that which was tried and charged in the municipal court. Koch, supra, 161 N.J. Super. at 65-66. The judge amended the complaint in the process of deciding the appeal. We held that "such an amendment deprived defendant of the due process and fundamental fairness inherent in any penal proceeding . . . ." Id. at 66-67.
Here, we hold that it was not erroneous to instruct the jury on both subsections (a) and (c) of the harassment statute even though the indictment only charged a violation of subsection (c) as Gilliam was not subject to the constitutional infirmities we found in Koch.
Gilliam cannot demonstrate inadequacy of notice either by lack of discovery or by the State's proofs at trial as to "that against which he must defend." Spano, supra, 128 N.J. Super. at 92. The allegations against Gilliam of harassing conduct through letters and telephone calls to the victims were known full well by him. The theory of Gilliam's guilt was "advanced by the State at trial" and "was charged by the court" without objection. Unlike Koch, Gilliam was not charged with a different and more serious offense for which he had no notice. During the trial, Gilliam was afforded sufficient opportunity to prepare and to defend against the allegations.
Even were we to find the inclusion of the unindicted language of the statute in the jury charge as error, we are not convinced that such error undermines our confidence in the outcome in that it "led the jury to a result it otherwise might not have reached[.]" Taffaro, supra, 195 N.J. at 454.
III
Also for the first time on appeal, Gilliam argues that he was deprived of his right to a fair trial by the Court's failure to bifurcate the harassment count due to his incarceration. The argument is wholly without merit.
Gilliam's incarceration was an element of the offense. Prior to jury selection, Gilliam's counsel acknowledged that his incarceration was one of the elements of the offense and that the jurors "were going to learn that." Defense counsel's primary concern was, and justifiably so, what impact that knowledge would have on a juror's ability to be fair and impartial. The judge specifically addressed the issue of Gilliam's incarceration during the voir dire by asking discrete questions, including supplemental questions submitted by Gilliam's counsel. The jurors were not informed of any specifics regarding Gilliam's incarceration. The judge gave an adequate limiting instruction. State v. Brown, 180 N.J. 572, 585 (2004).
Finally, we agree with the State's argument that had the jury been "inflamed" by the knowledge of Gilliam's incarceration, it presumably would not have acquitted him of the stalking charge.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION