Opinion
DOCKET NO. A-2001-12T1
04-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTWIONE A. PARSLEY, a/k/a ANTOINE A. PARSLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 11-04-0229. Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Antwione Parsley appeals his conviction for fourth-degree aggravated assault, second-degree possession of a firearm for an unlawful purpose, second-degree unlawful possession of a handgun, and second-degree possession of a weapon by a convicted felon. We affirm the convictions, but remand for resentencing.
I.
We discern the following facts and procedural history from the record on appeal.
On the evening of August 28, 2010, Mr. Bundy spent two to three hours on Sinnickson Street in Salem working on a friend's car. Parsley, Mr. Cabell, Mr. Booker, Mr. Roots, and Roots' daughter were also in the area. The car was parked in front of Roots' house.
While Bundy was working on the car, Parsley and Cabell got into an argument. Parsley smacked Cabell and accused him of "being on somebody's paperwork," otherwise known as "[b]eing a snitch." Bundy helped Cabell off the ground and told him to go home.
Parsley then accused Bundy of being a snitch. Bundy challenged Parsley to a fist fight. In response, Parsley continued "running off at the mouth," threw a bike and a stroller at Bundy, but nevertheless kept his distance from him.
Shortly thereafter, Parsley told Bundy that he was "about to clear the street," and Bundy told him to do what he had to do. After Parsley responded that he was "going to show [Bundy] something," Bundy heard Parsley make a call on his cellphone, during which he instructed the recipient of the call to "bring Roscoe." Bundy understood "Roscoe" to be a reference to Parsley's gun. Parsley then left the area.
Bundy subsequently saw Parsley's car drive down Sinnickson Street and turn right. Approximately five minutes later, Bundy was told to leave the street when someone yelled: "Watch out." Bundy turned around and saw Parsley between two houses, standing behind a school bus. He heard gunshots and saw Parsley pointing a gun in his direction. The shooting occurred at approximately 1:00 a.m. on August 29. After the shots were fired, Bundy and Booker fled the scene.
At the time the events described above were taking place, the Salem County Prosecutor's Office was intercepting calls on Parsley's cellphone pursuant to a warrant related to an ongoing narcotics investigation. One of the intercepted calls took place at 1:33 a.m., when Parsley received a call from Bundy. Bundy began,
Although other calls were introduced at trial, we need not include them in our recitation of the facts because they are not relevant to the issues on appeal.
Ima . . . [t]ell you just like this. The shit you just did be ready to . . . we going to war. I thought I was doing something for you and lookin out for you. You want to act like a little bitch! I want to see if you go all the way through with it bro.After some further back and forth with Bundy, Parsley added, "It's . . . the skinny boy Dont! You hear me? . . . Say no more! . . . Ain't nuthin to talk about . . . It's Dont you hear me?" Bundy understood Parsley to mean that the shots had been intended for Cabell, whose nickname was Dont, and not for him.
Ms. Welch is a school bus driver who lives on the corner of Sinnickson Street and Eakin Street. She parks her school bus near her home. She recalled waking up sometime between 1:00 and 2:00 a.m. on August 29, after hearing approximately six gunshots. She did not look out of her window, and just went back to sleep. She testified that hearing gunshots was not unusual in her neighborhood. Later that morning, Welch went outside to get the newspaper and discovered shell casings on her porch. She testified that they had not been there the previous day.
Later on August 29, Sergeant Brian Facemyer of the Salem County Prosecutor's Office interviewed Bundy at the Woodstown Police Station. Bundy had previously provided information to the police as an informant. He identified Parsley as the shooter. During the interview, Facemyer showed Bundy a map of Sinnickson Street and the surrounding area. Bundy told Facemyer that the shooting took place near the house on the corner of Eakin Street and Sinnickson Street.
In April 2011, Parsley was indicted and charged with first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 and 11-3 (count one); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1), (count two); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2), (count three); fourth-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(4), (count four); second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count five); second-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b) (count six); and second-degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7(b)(1) (count seven).
Prior to trial, Parsley moved unsuccessfully to suppress the conversations obtained as a result of the wiretap. The case was then tried over four days in January 2012.
During Welch's testimony, the prosecutor and defense counsel stipulated "that there were no forensic tests done that established any connection, any forensic or scientific connection between the shell casings . . . and Mr. Parsley." At the end of the State's case, defense counsel objected to the admission of the shell casings into evidence, arguing that the casings were not relevant based on the stipulation. The judge disagreed and allowed the casings into evidence, finding that they were "evidence that there had been a weapon fired at that location on that night. And, there are reasonable inferences that could be made from that."
During the charge conference, the judge asked counsel whether an identification charge was necessary. The prosecutor and defense counsel initially agreed that the charge was not needed. Because the judge wanted to make sure that both sides were comfortable with omitting the charge, he read it to them. After hearing a portion of the charge, defense counsel changed his mind and told the judge that the charge should be given.
The judge then suggested that the charge might need to be modified to omit inapplicable language, and asked the attorneys to discuss the matter. Counsel eventually agreed on the following language, which was subsequently read to the jury:
Folks, Mr. Parsley, as part of his general denial of guilt, contends that the State has not present[ed] reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offenses. The burden of proving the identity of the person who committed the crimes is upon the State. For you to find Mr. Parsley guilty, the State must prove beyond a reasonable doubt that he is the person who committed the crimes. Mr. Parsley has neither the burden, nor the duty to show that the crimes, if committed, were committed by someone else, or to prove the identity of that other person.
You must determine, therefor[e], not only whether the State has proven each and
every element of the offenses charged beyond a reasonable doubt, but also, whether the State has proved beyond a reasonable doubt that Mr. Parsley is the person who committed them.
The State has presented the testimony of Mr. Bundy. You will recall that Mr. Bundy identified Mr. Parsley in court as the person who committed the offenses contained in the indictment. The State has presented testimony that on a prior occasion before the trial, Mr. Bundy identified Mr. Parsley as the person who committed these offenses. . . . According to Mr. Bundy, his identification of Mr. Parsley was based upon the observations and perceptions that he made of the perpetrator at the time the offenses were being committed.
It is your function to determine whether Mr. Bundy's identification of Mr. Parsley is reliable and believable, or whether it is based on a mistake, or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that Mr. Parsley is the person who committed the offenses charged. You should consider the observations and the perceptions on which the identification was based, and the circumstances under which the identification was made.
Although nothing may appear more convincing than a witness' categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness' level of confidence standing alone may not be an indication of the reliability of the investigation -- strike that -- of the identification.
In evaluating your identifications, you should consider the observations and the perceptions on which the identifications were based, the witness' ability to make those observations and perceptions. If you determine that the out of court identification is not reliable, you may still consider Mr. Bundy's in court identification of Mr. Parsley if you find that it is reliable.
Unless the in court identification resulted from Mr. Bundy's observations or perceptions . . . of the perpetrator during the commission of the offense, rather than being a product of an impression gained at the out of court identification procedure, it should be afforded no weight. The ultimate issue of the trustworthiness of both the in and out of court identifications are for you to decide. To decide whether the identification testimony is sufficiently reliable evidence upon which to conclude that Mr. Parsley is the person who committed the offenses charged, you should evaluate the testimony of Mr. Bundy in light of the factors for considering credibility that I have already explained to you.
In addition, you may consider the following factors: the witness' opportunity to view the person who committed the offenses at the time of the offenses; the witness' degree of attention to the perpetrator at the time of the offenses; the accuracy of any description the witness gave prior to identifying the perpetrator; the degree of certainty expressed by the witness in making the identification; the length of time between the witness' observation of the offenses and the first identification; discrepancies or inconsistencies between identifications, if any; the circumstances under which any out of court identification was made, and whether or not it was the product of suggestive procedure, including
anything done or said by law enforcement to the witness before, during, or after the identification process; and any other factor, based on the evidence or lack of evidence in this case, which you consider relevant to your determination whether the identifications are reliable.
Unless the in and out of court identifications resulted from Mr. Bundy's observations or perceptions of the perpetrator during the commission of the offenses, rather than b[e]ing a product of an impression gained in the in court or out of court identification procedures, it should be afforded no weight. The ultimate issue of trustworthiness of the identification is for you to decide.
If, after consideration of all of the evidence, you determine that the State has not proven beyond a reasonable doubt that Mr. Parsley was the person who committed the offenses, then you must find him not guilty. If, on the other hand, after consideration of all the evidence, you [] are convinced beyond a reasonable doubt that Mr. Parsley was correctly identified, you will then consider whether the State has proven each and every element of the offenses charged beyond a reasonable doubt.
On January 25, the jury found Parsley guilty of counts four through six. The jury was unable to reach a verdict on counts one through three, which were first-degree attempted murder, second-degree aggravated assault, and third-degree aggravated assault. Those counts were subsequently dismissed. The jury then considered count seven, the certain persons offense, and found Parsley guilty.
Parsley was sentenced on March 20. Noting Parsley's substantial criminal record involving weapons offenses, the judge found that aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the risk of re-offense; six, N.J.S.A. 2C:44-1(a)(6), prior criminal record; and nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence, should be given full weight. He did not find any mitigating factors.
The judge sentenced Parsley to eighteen months on count four, with a mandatory eighteen-month minimum period of incarceration pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). He sentenced Parsley to three nine-year terms of imprisonment on the weapons offenses, with an eighty-five percent parole bar pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which provided a greater mandatory term than the Graves Act. All of the sentences were to run concurrently. On April 9, the judge revised Parsley's sentence to add a three-year period of parole supervision on counts five through seven, pursuant to a NERA provision, N.J.S.A. 2C:43-7.2(c). This appeal followed.
II.
Parsley argues the following points on appeal:
POINT I: THE TWO SHELL CASINGS FOUND IN THE AREA OF THE SHOOTING WERE IRRELEVANT AS TO WHETHER PARSLEY WAS THE SHOOTER AND IN ANY CASE WERE MORE PREJUDICIAL THAN PROBATIVE SINCE THE CASINGS, BY STIPULATION, WERE NOT CONNECTED TO PARSLEY, AND THE PRIMARY ISSUE
WAS WHETHER THE VICTIM LIED ABOUT PARSLEY BEING THE SHOOTER; THEREFORE PARSLEY'S CONVICTIONS MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.
POINT II: THERE WAS NO BASIS TO INSTRUCT THE JURY ON IDENTIFICATION SINCE THE ISSUE WAS NOT IN THE CASE AND IT CONFLICTED WITH THE SOLE DEFENSE THAT BUNDY LIED ABOUT THE INCIDENT, NOT THAT HE MISIDENTIFIED PARSLEY, A LIFE-LONG ACQUAINTANCE.
POINT III: PARSLEY'S AGGREGATE NINE-YEAR SENTENCE OF IMPRISONMENT FOR THE THREE UNDERLYING SECOND-DEGREE WEAPONS CONVICTIONS WAS EXCESSIVE IN LIGHT OF THE FACT THAT THE OVERRIDING CONVICTION WAS ONLY A FOURTH DEGREE POINTING CHARGE WHICH, IN ANY CASE, SHOULD HAVE MERGED WITH THE SECOND DEGREE UNLAWFUL PURPOSE CHARGE. IN ADDITION, THE IMPOSITION OF THE 85% NERA PAROLE BARS WAS IMPROPER. (Not Raised Below)
A.
We begin our analysis of Parsley's appellate arguments with the issue of the shell casings. He contends that, in light of the stipulation that there was no forensic evidence linking the shell casings to him, they were irrelevant and should not have been admitted. We disagree.
As a general matter, substantial deference is given to a trial judge's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Our review of related legal issues is plenary. State v. Handy, 206 N.J. 39, 45 (2011).
Evidence is relevant when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; State v. Wilson, 135 N.J. 4, 13 (1994). This test is broad and favors admissibility. See State v. Deatore, 70 N.J. 100, 116 (1976). In determining whether evidence is relevant, the inquiry focuses on "the logical connection between the proffered evidence and a fact in issue," State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990), or, stated differently, "whether the proffer 'renders the desired inference more probable than it would be without the evidence.'" State v. Davis, 96 N.J. 611, 619 (1984) (quoting Deatore, supra, 7 0 N.J. at 116). The evidence need not be conclusive in itself, but need only, when taken together with other evidence, make the existence of the fact sought to be proven more probable. Except as otherwise provided by the Rules of Evidence or other law, "all relevant evidence is admissible." N.J.R.E. 402.
Welch found the shell casings on her porch on the morning following the shooting, which she had heard, but did not see, earlier the same morning. She testified that the casings had not been there the previous day. Her house was located in the area from which Bundy testified he saw Parsley fire shots earlier that morning. In addition, Bundy testified that Parsley was standing near a school bus, which Welch testified she had parked near her home.
As the trial judge held, there were inferences supportive of the State's case that could be drawn from those facts. We note that the defense summation, during which defense counsel reminded the jury that Welch had testified that she had not actually seen any shooting that night and that the sound of gunfire was not unusual in her neighborhood, can be understood as suggesting to the jury that the shots heard by Welch took place at another location and not next to her home. In contrast, the presence of the shell casings had a tendency to support the truthfulness of Bundy's testimony that he saw Parsley shooting at that location. Consequently, we see no error and no undue prejudice from the judge's decision to allow the casings into evidence.
B.
We next turn to the issue of the identification charge. Parsley argues that, because identification was not an issue at trial, the giving of the charge was prejudicial to him. He does so despite the fact that his trial attorney specifically requested that the judge give the charge.
Normally, "a defendant waives the right to contest an instruction on appeal if he does not object to the instructions[, but] . . . an appellate court may reverse on the basis of unchallenged error if the court finds that the error was 'clearly capable of producing an unjust result.'" State v. Adams, 194 N.J. 186, 206-07 (2008) (quoting R. 2:10-2). Our Supreme Court has
explained that plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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.""The charge to the jury must be read as a whole in determining whether there was any error." Ibid. Additionally, "[i]f the defendant does not object to the charge [or lack of charge] at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).
[Id. at 207 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
In this case, although both counsel originally agreed that no such charge was required, defense counsel changed his mind and specifically requested that it be given. He then agreed to the wording of the charge that was given. Consequently, the doctrine of invited error bars Parsley from raising this issue on appeal. State v. Corsaro, 107 N.J. 339, 345 (1987) (internal citations and quotation marks omitted) ("Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.").
In any event, our review of the record, the defense summation, and the charge convinces us that there was no actual prejudice to Parsley. A fair reading of the defense summation reflects that counsel's primary argument was that the jury should not believe any testimony given by Bundy, "a convicted felon." As discussed in the previous section concerning the shell casings, the defense questioned whether a shooting had taken place at Bundy's location. The defense summation also addressed inconsistencies in Bundy's description of Parsley's clothing, thereby suggesting that, if in fact someone was actually shooting at Bundy and those nearby, Bundy's identification of Parsley as the shooter was questionable. While Bundy clearly knew Parsley's identity, the dispute was whether he accurately identified Parsley as the person doing the shooting. Therefore, the jury was properly charged on the identification issue.
C.
Finally, we turn to the issue of the sentence. Parsley argues that the judge erred in failing to merge counts four and five and in imposing the NERA parole bar. He also contends that the sentence should have been in the middle of the five to ten year range for a second-degree crime, rather than at the top of the range.
"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).
Here, the trial judge erred in applying NERA. It is applicable only to certain enumerated crimes of the first- or second-degree. N.J.S.A. 2C:43-7.2(a). Although the weapon possession offenses involved in this case are second-degree crimes, NERA is not applicable to them because they are not listed in N.J.S.A. 2C:43-7.2(d).
Parsley also argues that count five, the second-degree possession of a firearm for an unlawful purpose charge, should have been merged with count four, the fourth-degree aggravated assault charge. We agree, and note that the State has not argued to the contrary.
In State v. Williams, 213 N.J. Super. 30, 36 (App. Div. 1986), certif. denied, 107 N.J. 104 ( 1987), we addressed the issue as follows:
To avoid merger of possession of a weapon for an unlawful purpose, four factors must be present: (1) the defendant must have been charged in the indictment with possession of the weapon with a broader unlawful purpose, either generally or specifically, than using the weapon to kill or assault the victim of the greater offense, (2) the evidence must support a finding that the defendant had a broader unlawful purpose, (3) the judge must
have instructed the jury of the difference between possession with the specific unlawful purpose of using the weapon against the victim of the greater offense and a broader unlawful purpose and (4) the verdict must express the jury's conclusion that the defendant had a broader unlawful purpose. There may be cases where merger is necessary despite the presence of these four factors.Where the third factor is not present, as is the case here, the offenses will merge. See id. at 37.
However, the merger does not mean that Parsley's sentence must be based on the fourth-degree offense. We recently addressed a somewhat similar issue in State v. Robinson, 439 N.J. Super. 196, 200-01 (App. Div. 2014), as follows:
The overriding principle of merger analysis is that "an accused [who] committed only one offense . . . cannot be punished as if for two." State v. Tate, 216 N.J. 300, 302 (2013) (citing State v. Davis, 68 N.J. 69, 77 (1975)).
As such, merger implicates a defendant's substantive constitutional rights. Not only does merger have sentencing ramifications, it also has a measurable impact on the criminal stigma that attaches to a convicted defendant.
[Tate, supra, 216 N.J. at 302-03 (citations and internal quotation marks omitted).]
N.J.S.A. 2C:1-8 codifies the standards for merging offenses. However, the parameters of the rule have been characterized as "mechanical." Tate, supra,
216 N.J. at 307. Instead, we look to "follow a 'flexible approach' to merger and consider the elements of the crimes, the Legislature's intent in creating the offenses and the specific facts of each case." State v. Messino, 378 N.J. Super. 559, 585 (App. Div.), certif. denied, 185 N.J. 297 (2005).
The Court in Tate applied this "preferred and more flexible standard," and concluded that defendant's conviction for third-degree possession of a weapon for an unlawful purpose merged with his conviction for first-degree aggravated manslaughter. Tate, supra, 216 N.J. at 307. The Court noted that "[w]hen the only unlawful purpose in possessing the [weapon] is to use it to commit the substantive offense, merger is required." Id. at 312 (quoting State v. Diaz, 144 N.J. 628, 636 (1996)).
In the present case, because defendant's sole unlawful purpose in possessing the weapon was to use it in the burglary, the State concedes that the two convictions must merge. At issue, then, is the proper sentence that should attach to the merged convictions.
Relying on Tate, defendant argues that the second-degree possession of a weapon for an unlawful purpose conviction merges with his second-degree burglary conviction. Consequently, he contends that the proper sentence for the merged offenses is the four-year prison term imposed for the burglary, subject to a NERA eighty-five percent parole disqualifier. However, the State notes that while the parole ineligibility component of the burglary sentence exceeds the three-year minimum term for the weapon offense under the Graves Act, the four-year burglary sentence is less severe than the five-year prison sentence for the weapon offense. Under these
circumstances, the State argues that the more serious aspects of each sentence should survive merger. Accordingly, the State submits that on his merged convictions, defendant should be resentenced to a five-year prison term, four years of which are subject to NERA.Consequently, the trial judge must consider what sentence to impose on the merged offense on remand.
We find support for the State's position in State v. Dillihay, 127 N.J. 42 (1992). In Dillihay, the Court addressed the issue of the appropriate sentence to be imposed when a defendant's conviction for a lesser-degree school-zone offense that carried a statutory mandatory minimum prison term merged with a higher-degree narcotics-related offense having no minimum term. Id. at 44-45. In such instance, the Court concluded that the maximum sentence on the higher offense and the mandatory minimum sentence on the lesser offense both survive. Id. at 56. Further, as one commentator has observed:
The appropriate rule is that the single offense for which defendant is found liable in the last analysis is the most serious of the offenses being merged, i.e. the one which provides the most severe sentence. Occasionally one aspect of a sentence for one of the offenses being merged will be more severe than that for the other offense and a second aspect will be less severe. In such a case, the more severe aspects of each sentence should survive merger.
[Cannel, New Jersey Criminal Code Annotated, comment 9 on N.J.S.A. 2C:1-8 (2014-15).]
In summary, we affirm the conviction and remand for resentencing consistent with our opinion. NERA is inapplicable and counts four and five must be merged for the purposes of sentencing. We do not reach Parsley's argument concerning the aggravating and mitigating factors because they, the appropriateness of the aggregate length of the new sentence, and any other additional sentencing issues can be considered, in the event of any subsequent appeal, in light of the reasons articulated for the new sentence on remand.
Affirmed in part, remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION