Opinion
DOCKET NO. A-5143-11T4
03-25-2015
STATE OF NEW JERSEY, Plaintiff-Respondent/Cross-Appellant, v. DARNELL R. REEVES, Defendant-Appellant/Cross-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent/cross-appellant (Megan B. Kilzy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-08-1508. Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent/cross-appellant (Megan B. Kilzy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Darnell Reeves appeals from convictions for weapons charges, arguing the trial judge erred in failing to give a "false-in-one-false-in-all" charge and the sentence was excessive. We affirm.
On December 12, 2008, members of the Jersey City Police Department responded to a shooting on 259 Clinton Avenue in Jersey City, New Jersey. Henry Molesky was found face down in the street. Molesky died two days later from a single gunshot wound to the right temple from a small caliber round. The weapon was never recovered.
At trial, Brandon Parsons testified that defendant asked defendant's brother, Nicquan Scott, to retrieve a gun which Parsons, defendant and Scott hid in a mattress in an alleyway on Clinton Avenue. A second witness, Timothy Williams, as well as Parsons, testified they each saw the victim that night at a liquor store at Clinton and Westside Avenue. Williams also testified that defendant told him he shot the victim.
A Hudson County grand jury returned a five-count indictment charging defendant with murder, N.J.S.A. 2C:11-3a(1) or (2) (count one), possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two), possession of a community gun, N.J.S.A. 2C:39-4a(2) (count three), possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count four), and possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count five). Count five was severed and the trial proceeded on the other counts. Defendant was acquitted of murder and convicted on the weapons charges. After the second trial, defendant was convicted of possession of a gun as a convicted felon. The judge imposed a sixteen-year sentence with an eight-year parole bar on the possession by a felon count and a concurrent eight-year term with a five-year parole bar on the possession without a permit count.
Defendant argues the trial judge's refusal to charge the jury with a "false-in-one, false-in-all instruction," deprived him of due process and a fair trial. Defendant also argues the State's case largely rested upon the testimony of Parsons and Williams. Defendant contends since there was no forensic evidence found or a murder weapon, the witnesses' testimony was replete with falsehoods, warranting the "false in one, false in all" instruction. We disagree.
The trial judge denied defendant's request to charge the jury with this instruction. The judge reasoned that the requested charge was "actually encompassed within credibility at the end of the [credibility] charge. I will not give that charge." The instruction given was in accord with the Model Jury Charge. In pertinent part the judge instructed:
Now, as the judges of the facts, you are to determine the credibility of the witnesses and, in determining whether a witness is worthy of belief and therefore credible, you
may take into consideration the following: the appearance and demeanor of the witness; the manner in which he may have testified; the witness's interest in the outcome of the trial, if any; his means or obtaining knowledge of the facts; the witness's power of discernment meaning his judgment, understanding, ability to reason, observe, recollect and relate, the possible bias, if any, in favor of the side for whom the witness testified; the extent to which, if at all, each witness is either corroborated or contradicted, supported or discredited by other evidence; whether the witness testified with an intent to deceive you; the reasonableness or unreasonableness of the testimony the witness has given; whether the witness made any inconsistent or contradictor statement; and any and all other matters in the evidence which serve to support or discredit his testimony.
Through this analysis, as the judges of the facts, you weigh the testimony of each witness and then determine the weight to give to it. Through that process you may accept all of it, a portion of it or none of it.
Jury instructions must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). We examine the jury charge "as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). We must disregard any error unless it was "clearly capable of producing an unjust result[.]" Ibid. (quoting R. 2:10-2). No party is entitled to have the jury charged in his or her own words. State v. Thompson, 59 N.J. 396, 411 (1971). "If the subject matter is adequately-covered in the text and purport of the whole charge, no prejudicial error comes into existence." Ibid.
Traditionally, the "false in one, false in all" instruction may be appropriate when there is a "conscious falsity as to a material fact" in a witness's testimony. State v. Ernst, 32 N.J. 567, 583 (1960). However, a trial judge has the discretion to give the charge "in any situation in which he reasonably believes a jury may find a basis for its application." Id. at 583-84. It "is not a mandatory rule of evidence, but rather a presumable inference that a jury . . . may or may not draw when convinced that an attempt has been made to mislead them by a witness in some material respect." State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div. 1960) (quoting State v. Guida, 118 N.J.L. 289, 297 (Sup. Ct. 1937)).
We are convinced that the record fully supports the judge's decision to deny the requested charge as without basis. Given our deference to the trial judge's "feel of the case," as well as our review of the jury charge as a whole, we conclude there is no basis for error. As the judge noted, and we concur, the credibility charge addresses the juror's ability to weigh the testimony of each witness and accept all of it, a portion of it, or none of it.
We also reject defendant's challenge to his sentence as excessive. The judge set forth her findings to support her conclusions in compliance with the sentencing guidelines.
Our review of a criminal sentence imposed by the trial court is limited. State v. Natale, 184 N.J. 458, 489 (2005). "Although appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts, when reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (internal quotation marks and citations omitted).
Reviewed under these standards, we find the judge appropriately weighed aggravating factors, applying (1) the nature of the offense, N.J.S.A. 2C:44-1a(1); (3) the risk of committing another offense, N.J.S.A. 2C:44-1a(3); (6) the extent of the defendant's prior criminal record and the seriousness of the offenses for which he's been convicted, N.J.S.A. 2C:44-1a(6); and (9) the need to deter defendant and others, N.J.S.A. 2C:44-1a(9). See State v. Dalziel, 182 N.J. 494, 501 (2005) (holding sentencing "require[s] that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence" and that "the factfinder apply correct legal principles in exercising its discretion") (internal citations omitted). The judge considered no mitigating factors. The judge concluded "[t]here being no mitigating factors, I find that the aggravating factors preponderate. As such, a sentence at or above the midpoint of the range is warranted."
We find no abuse of the reasoned discretion afforded trial judges tasked with sentencing convicted criminals. When "conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Court] . . . they need fear no second-guessing." Cassady, supra, 198 N.J. at 181 (quoting State v. Roth, 95 N.J. 334, 365 (1984)).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION