Opinion
DOCKET NO. A-1467-10T2 A-1731-10T2
07-15-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHARLES RICHARDSON, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH BODDIE, Defendant-Appellant.
Alan Dexter Bowman argued the cause for appellant Charles Richardson. Marc A. Festa, Senior Assistant Prosecutor, argued the cause for respondent in A-1467-10 (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Festa, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Kenneth Boddie (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent in A-1731-10 (Marc A. Festa, Senior Assistant County Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
A-1731-10T2
These appeals originally calendared back-to-back are consolidated for purposes of this opinion only.
Argued (A-1467-10T2) and Submitted (A-1731-10T2)
Before Judges Simonelli, Koblitz and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-02-0168.
Alan Dexter Bowman argued the cause for appellant Charles Richardson.
Marc A. Festa, Senior Assistant Prosecutor, argued the cause for respondent in A-1467-10 (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Festa, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Kenneth Boddie (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent in A-1731-10 (Marc A. Festa, Senior Assistant County Prosecutor, of counsel and on the brief). PER CURIAM
A grand jury indicted defendants Charles Richardson (Richardson) and Kenneth Boddie (Boddie) for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b; and first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2a. The charges stemmed from the shooting death of Kasiem Benton (Benton). In a joint trial, it was the State's theory that Richardson was the shooter and Boddie a co-conspirator.
The grand jury also indicted Richardson for second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7b.
Benton was shot in the back, neck, face, left shoulder and left hand. The fatal shot fractured his third and fourth cervical vertebrae and lacerated his spinal cord.
A jury found Richardson guilty of murder and the related weapons offenses, and not guilty of conspiracy to commit murder. The same jury found Boddie guilty of first-degree aggravated manslaughter, a lesser-included offense of murder, N.J.S.A. 2C:11-4a, and the related weapons offenses, and not guilty of conspiracy to commit murder. The trial judge denied both defendants' motions for judgment notwithstanding the verdict (j.n.o.v.).
The judge sentenced Richardson on the murder conviction to a fifty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged Boddie's possession of a handgun for an unlawful purpose conviction with the aggravated manslaughter conviction and sentenced him on the aggravated manslaughter conviction to a seventeen-year term of imprisonment subject to NERA. The judge also imposed a concurrent five-year term of imprisonment on Boddie's possession of a handgun without a permit conviction.
The judge also sentenced Richardson to a concurrent five-year term for the possession of a handgun without a permit conviction with a thirty-month period of parole ineligibility and a concurrent ten-year term of imprisonment for the certain persons not to have weapons conviction with a five-year period of parole ineligibility. Richardson does not challenge his sentence.
On appeal, Richardson raises the following contentions:
Point I — The Trial Court Erred In Failing To Instruct The Jury As To The Defense Of Self-Defense In Relation To Each Of The Offenses In The Indictment And As To Passion/Provocation Manslaughter (Not Raised Below).
i. The Defense of Self Protection.Point II — The Trial [Court] Committed Plain Error In Its Admission And Management Of Other Crimes Evidence In Lieu Of Ordering A Mistrial (Partially Raised Below).
a. Application to Non-Possessory Offenses.ii. General [Law] As To Jury Instruction.
iii. This Court Must Reverse.
iv. Passion/Provocation.
A. Pertinent Law.Point III The Prosecutor's Comments In Summation Denied Appellant A Fair Trial ([P]artially Raised Below).
1. Other Crimes Evidence.B. Appellant Was Clearly Denied a Fair Trial.
2. The Law As to Mistrial.
1. CDS As Currency For Car Rental.
2. Testimony as to an FBI Informant.
i. The Misconduct.
ii. The Law.
On appeal, Boddie raises the following contentions:
POINT I
BECAUSE THE STATE TRIED THE CASE AGAINST THE DEFENDANT SOLELY ON A THEORY OF CONSPIRATOR LIABILITY, AND THE JURY WAS NOT INSTRUCTED AS TO ACCOMPLICE LIABILITY, THE CO[N]VICTION OF AGGRAVATED MANSLAUGHTER CANNOT STAND IN LIGHT OF THE DEFENDANT'S ACQUITTAL OF CONSPIRACY. U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.
A. The Homicide Conviction Cannot Stand Because It Lacks the Necessary Predicate of a Finding of Conspiracy.POINT II
B. The Defendant Cannot Be Convicted As An Accomplice Because the Jury Was Never Instructed As To That Theory.
C. Double-Jeopardy Principles Bar Re-Prosecution for Homicide, Necessitating Dismissal of the Murder Charge.
D. Conclusion.
TESTIMONY THAT THE POLICE HAD RECEIVED A TIP FROM AN FBI INFORMANT CONSTITUTED A CLEAR VIOLATION OF STATE V. BANKSTON, AND THE COURT'S CURATIVE CHARGE COULD NOT HAVE BEEN SUFFICIENT TO REMEDIATE THE PREJUDICE, NECESSITATING REVERSAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 9.
POINT III
THE CONVICTION WAS CLEARLY ASGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.
POINT IV
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We affirm Richardson's conviction, and affirm Boddie's conviction and sentence.
The record reveals the following facts. In the late evening of September 16, 2006, Coral Santana (Santana) and Jontae Thomas (Thomas) saw Benton on Hamilton Avenue in Paterson and stopped to talk to him for about fifteen minutes. A Maxima pulled up to them while they were talking. Both Santana and Thomas, who knew Richardson and Boddie, saw that Richardson was driving the Maxima and Boddie was in the front passenger seat. Santana saw that both the driver's and front passenger's windows were down. She heard Benton exchange words with the people in the car but could not recall what they said. She was standing right next to Benton and was approximately eight feet from the Maxima at the time.
Santana and Boddie were friends, she had known him "for a long time," and she had known Richardson for a few months; Thomas knew Richardson since high school and had known Boddie for a few months.
Santana also testified she saw an unknown third person in the rear passenger seat.
Thomas was standing next to Benton the whole time they were talking and she never saw him with a gun. After the Maxima arrived, she heard Richardson say to Benton, "What's popping?" and Benton respond, "What's popping?"
Both Santana and Thomas heard gunshots immediately after the verbal exchange. Santana heard two shots, but did not see who shot at whom. Santana believed the shots came from the Maxima's front driver's side through the front passenger window. Thomas heard "like five" gunshots come from inside the Maxima, and saw a flash come from within the car. Thomas testified that the passenger side of the car was closest to her and she thought the shots came from the driver's side but was not positive.
Thomas and Santana ran from the scene after hearing the gunshots. They returned a few minutes later and found Benton lying on the ground bleeding. Thomas grabbed a shirt and held it against a bullet wound to try and stop the bleeding. Santana was standing near Thomas and Benton when the police and an ambulance arrived. Both women went to police headquarters but were too scared to give the police information about Richardson and Boddie or the vehicle they were driving. The police found no weapons or shell casings at the crime scene.
Shortly after the shooting, Boddie called Santana while she was still at the scene and said to her, "Y'all good, you better not say nothing." Santana testified that the call made her feel "terrified and scared." At police headquarters later that night, Boddie called Santana again and said, "Y'all good?" She knew Boddie's voice and was 100% positive that he was the caller. Boddie called Santana two more times between September 16 and 19, 2006. She did not answer the first call. When she answered the second call, Boddie said, "You okay?" Boddie also called Thomas and said, "Don't say nothing." Thomas testified that the call scared her and she perceived it as a threat.
On September 19, 2006, Santana and Thomas went to police headquarters, gave videotaped statements, identified Richardson and Boddie from photographs, and identified a photograph of the Maxima that Richardson was driving the night of the shooting. They identified Richardson and Boddie at trial as well.
The Maxima was owned by the father of Sean Sullivan (Sullivan). Sullivan testified that on September 15, 2006, he went to the house of Phyllis Huntington (Huntington) to use drugs with her and to rent the car for drugs or for money to buy drugs. Between September 15 and 16, Sullivan rented the car to Derrick Wiley and Eric Wiley, and then to someone else the afternoon of September 16. Sullivan was at Huntington's house when the Wileys came with other people to rent the car. He believed there were three people who rented the car after the Wileys. September 16 was the last time he saw the car.
On September 17, 2006, Sullivan reported the Maxima stolen. The car was found on September 20, several blocks from the crime scene. Empty bullet shells that appeared to be from a .45 caliber semi-automatic weapon were found in the back seat and on the back floor. A projectile was recovered from inside the rear passenger door. Defendants' fingerprints and DNA were not found in the car.
At police headquarters on September 21, 2006, Sullivan was unable to identify Richardson or Boddie as the individuals who had rented the Maxima. Sergeant Dean Barone (Sgt. Barone) of the Paterson Police Department advised Sullivan he did not have to be 100% certain before making a positive identification. Sullivan then asked for another opportunity to make an identification. He returned to police headquarter on September 27, gave a statement, and identified photographs of Richardson and Boddie as the individuals who had rented the Maxima; however, he was not 100% certain he had rented the car to them and not sure whether he had ever seen them before. Sullivan was also never 100% certain about his photographic identifications, and only 70% certain about his identification of Richardson. Nevertheless, he believed Richardson and Boddie were the last people he had rented the Maxima to on September 16, 2006.
Sullivan testified that when the car was recovered, there appeared to be a bullet hole in the passenger-side door, which was not there when he rented the car on September 16. He did not know when or where the bullet hole occurred.
According to Huntington, Sullivan rented the car to Derrick Wiley on September 16, 2006, and then to Richardson, whom Huntington knew, later that day. At police headquarters on September 26, she identified a photograph of Richardson. She also identified him at trial.
I.
Richardson contends for the first time on appeal in Point I that the judge erred in failing to sua sponte instruct the jury on passion/provocation manslaughter and self-defense. He argues the exchange of words with Benton before the shooting "spawned an exchange of gunfire" with Benton firing shots first. We review this contention under the plain error standard of review to determine whether the alleged error was capable of producing an unjust result. R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 (2004).
A trial judge "has an independent obligation" to instruct the jury on lesser-included offenses when the evidence "clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). "What must be clearly indicated, however, is a rational basis in the evidence. A lesser included offense must be charged if there is a rational basis in the evidence to support such a charge." State v. Perry, 124 N.J. 128, 193 (1991); see also N.J.S.A. 2C:1-8e. "The evidence must present [an] adequate reason for the jury to acquit the defendant on the greater charge and to convict on the lesser." State v. Brent, 137 N.J. 107, 118-19 (1994). "[S]heer speculation does not constitute a rational basis." Id. at 118.
A. Passion/Provocation Manslaughter
"Murder that is committed in the heat of passion induced by a reasonable provocation is reduced to manslaughter." State v. Rambo, 401 N.J. Super. 506, 514 (App. Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009). "Passion/provocation manslaughter has four elements: (1) the provocation must be adequate; (2) the defendant must not have had time to cool off between the provocation and the slaying; (3) the provocation must have actually impassioned the defendant; and (4) the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated." Ibid. To justify a finding of adequate provocation, "the provocation must be 'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" Id. at 412 (quoting State v. King, 37 N.J. 285, 301-02 (1962)). Generally, "words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter." State v. Crisantos, 102 N.J. 265, 274 (1986).
Here, there was no basis for finding any of the elements of passion/provocation manslaughter based on the evidence presented at trial. There was no evidence that a dispute or confrontation led to the shooting; rather, the evidence only showed that Richardson and Benton exchanged some words before the shooting. What Benton said to Richardson could not be found to constitute "adequate provocation" that would justify a finding of passion/provocation manslaughter. In addition, there was no evidence that Benton was the aggressor, had a weapon, or otherwise provoked either of the defendants. Further, although there was a bullet hole in the Maxima's passenger-side door, there is no evidence that Benton had a gun, and no weapons or bullet shells were found at the crime scene. It was, thus, sheer speculation that Benton fired shots first or that he fired into the Maxima.
B. Self-Defense
"In a murder case, self-defense exonerates a person who kills but has the reasonable belief that such force was necessary to prevent death or serious injury. Self-defense will apply even if it is found that the belief was mistaken." State v. Vasquez, 265 N.J. Super. 528, 547 (App. Div.), certif. denied, 134 N.J. 480 (1993). "[T]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4a. However,
The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:
(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating[.]
[N.J.S.A. 2C:3-4b(2).]
"[I]f any evidence raising the issue of self-defense is adduced, either in the State's or the defendant's case, then the jury must be instructed that the State is required to prove beyond a reasonable doubt that the self-defense claim does not accord with the facts[.]" State v. Kelly, 97 N.J. 178, 200 (1984). However, a trial judge is not obligated to give a self-defense instruction if it is inconsistent with a defendant's trial strategy. Perry, supra, 124 N.J. at 162-63. In Perry, the Court explained:
Trial courts must carefully refrain from preempting defense counsel's strategic and tactical decisions and possibly prejudicing defendant's chance of acquittal. . . .
. . . [D]espite the arguable appropriateness of the self-defense charge, such a charge would have been directly contrary to defendant's position at trial, could have prejudiced his chances of being acquitted of knowing murder by emphasizing his presence at the murder scene, and would have forced counsel to have foresaken or altered his chosen strategy.
[Ibid.]
There was no evidence in this case that supported a self-defense charge. The evidence established that Benton did not have a gun and did nothing that could have led Richardson to believe he faced death or serious bodily harm. Furthermore, self-defense was inconsistent with Richardson's trial theory that he was not at the scene of the shooting and was incorrectly identified as the shooter. Thus, a self-defense charge would have been prejudicial to his defense. Accordingly, the trial judge committed no error, let alone plain error, in not sua sponte charging passion/provocation manslaughter and self-defense.
II.
Richardson contends for the first time on appeal in Point II that it was plain error to admit evidence that drugs were used as currency to lease the Maxima. We conclude the invited error doctrine bars this contention.
Our Supreme Court has held that
Mistakes at trial are subject to the invited-error doctrine. Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal. In other words, if a party has invited the error, he is barred from raising an objection for the first time on appeal.
The doctrine acknowledges the common-sense notion that a disappointed litigant cannot argue on appeal that a prior ruling was erroneous when that party urged the lower court to adopt the proposition now alleged to be error. That principle is grounded in considerations of fairness, and is meant to prevent defendants from manipulating the system. The doctrine is implicated when a defendant in some way has led the court into error, and it has been applied in a wide variety of situations. Even if a party has invited an error, though, courts will not bar defendants from raising an issue on appeal if the particular error . . . cut mortally into the substantive rights of the defendant. If the doctrine would cause a
fundamental miscarriage of justice, it will not be applied automatically.
[State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation marks and citations omitted.)]
The facts of this case fall squarely within the invited error doctrine. Richardson's counsel did not object when the prosecutor said in his opening statement that Sullivan rented the Maxima for drugs and/or money to buy drugs and said the same thing in his opening statement. Defense counsel also did not object to Sullivan's and Huntington's direct testimony on this evidence and cross-examined them about it as well. It is clear from the record that defense counsel used this evidence as an element of defense strategy to show that Sullivan and Huntington were drug addicts who lacked credibility.
In any event, this evidence was properly admitted as intrinsic evidence. The Maxima was used at the time of the crime. Thus, the question of whether Richardson had used the car on the night of the shooting was critical to both the prosecution and the defense. As a result, the evidence of Richardson's rental of Sullivan's car was significant to Richardson's identification relating to his possession of the car, and more importantly, his presence at the crime scene. Because Richardson's rental of Sullivan's car was performed contemporaneously with the shooting and helped facilitate the commission of that crime, it can be considered admissible "intrinsic" evidence. State v. Rose, 206 N.J. 141, 177-80 (2011). As a result, it need not be analyzed under N.J.R.E. 404(b). Id. at 177-78. Accordingly, there was no error in the admission of evidence that drugs were used as currency to lease the Maxima.
Richardson also contends he was prejudiced by Sgt. Barone's testimony that the FBI provided information from an informant on his whereabouts in Tennessee. We address this issue in Point V, infra.
Richardson fled to Tennessee after the shooting.
III.
Richardson contends in Point III that comments made during the prosecutor's summation denied him a fair trial. As to certain comments, he raises this contention for the first time on appeal. As to all comments, we find the contention lacks merit.
Prosecutors are "expected to make vigorous and forceful closing arguments to juries[,]" and "are afforded considerable leeway in [their] closing arguments[.]" State v. Frost, 158 N.J. 76, 82 (1999). However, there are limits on what a prosecutor may say during summation. A prosecutor must "confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence. . . . [I]f a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson (Johnson I), 31 N.J. 489, 510 (1960)) (internal citations omitted). Prosecutors are also permitted to "respond to an issue or argument raised by defense counsel." State v. Johnson (Johnson II), 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996).
Our Supreme Court has articulated the standard for review of alleged prosecutorial misconduct with respect to summation remarks:
An appellate court, in reviewing the trial record to determine whether the conduct of the prosecutor exceeded these bounds, must consider several factors, including whether timely and proper objections were raised, whether the offending remarks were withdrawn promptly, and whether the trial court struck the remarks and provided appropriate instructions to the jury[.] Additionally, an appellate court will consider whether the offending remarks were prompted by comments in the summation of defense counsel. If, after completing such a review, it is apparent to the appellate court that the remarks were sufficiently egregious, a new trial is appropriate, even in the face of overwhelming evidence that a defendant may, in fact, be guilty. In contrast, if the prosecutorial remarks were not so egregious
that they deprived the defendant of a fair trial, reversal is inappropriate.
[State v. Smith, 212 N.J. 365, 403-04 (2012) (internal quotation marks and citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).]
First, Richardson argues that the prosecutor improperly asked the jurors to substitute their own experiences with an automatic weapon for actual evidence when he said,
Anybody who has shot a weapon, and there might be one on this jury, I imagine, just by numbers there is somebody that shot a semiautomatic handgun, knowing that . . . the shell flies[.]
. . . .
[W]here the shell casings are recovered . . . makes [Boddie] involved in the shooting, but it makes [Richardson] the killer.
. . . .
By the very nature of where the shell casings are, it shows that [Richardson] is the shooter. Remember, ga-googe, kicks it back seat, ga-googe, kicks it back seat. Because [Richardson's] arm is not out the window, [Richardson's] arm is going like this and shooting through the passenger window and throwing the shells in the back seat.
The foregoing remarks were not improper. Both Santana and Thomas testified that Richardson was driving the Maxima and the gunshots came from inside the car. Santana believed the shots came from the car's front driver's side through the front passenger window and Thomas thought the shots came from the driver's side but was not positive. Sgt. Barone testified that empty shell casings from a .45 caliber semi-automatic weapon were found in the car's back seat and on the back floor. Thus, the prosecutor's comments were a fair comment on the evidence and the reasonable inferences to be drawn therefrom. See State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Moreover, the prosecutor's comments were a response to defense counsel's remarks. See State v. DiPaglia, 64 N.J. 288, 297 (1974). In his opening, defense counsel said,
You don't have to be an expert, Mr. Johnson, with military experience, 13 years in the [A]rmy, handguns are basically two kinds. There's the revolver, and this general knowledge. I'm sure if anybody has handled a gun or knows of handguns, there's a revolver with the cylinder, usually has six shots and the casings, which is the brass part of the shell, stays in the cylinders. We can assume since there were casings found at the scene, that the weapon, which has not been found, was at least an automatic, which ejects the casings every time it shoots.Accordingly, we perceive nothing improper in the prosecutor's comments, particularly in light of defense counsel's opening statement. See State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (holding that "[i]n reviewing the State's response, [the court] 'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo.'" quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991).
For the first time on appeal, Richardson argues that the prosecutor improperly said that defendants were searching for Benton because they had a problem with him. The prosecutor's remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom. See Swint, supra, 32 8 N.J. Super. at 261. The evidence established that Richardson and Boddie drove up to Benton; the parties briefly exchanged words; and then Richardson shot Benton. The jury could have reasonably inferred from this evidence that Richardson had a problem with Benton and Richardson was looking for Benton, or alternatively, when Richardson saw Benton he decided to take that opportunity to shoot him. Thus, the comment did not constitute plain error. R. 2:10-2; State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
Richardson also argues for the first time on appeal that the prosecutor improperly appealed to the jurors' emotions by saying that Santana and Thomas were intimidated and victimized both on the day of the shooting and on cross-examination at trial; however, the prosecutor only said that both witnesses were victimized in court while they were testifying. The remark was directed at defendants and their "friends" who were in the courtroom, not at defense counsel. Both Santana and Thomas testified that they were scared of what Richardson or Boddie might do to them, or their children, if they identified them as the shooters. From their testimony it was obvious that they were scared to be in the same courtroom with defendants.
The trial judge noted that on each trial day, the courtroom was filled with defendants' supporters, including a number of young males all wearing white T-shirts. The judge commented that Santana and Thomas were affected by this and that the jury saw how it affected them.
Moreover, the prosecutor's remarks were in response to Boddie's counsel's comments in his closing statement regarding Santana's and Thomas's demeanor during their trial testimony:
Did [Santana and Thomas] seem to be -- were they scared, were they frightened. I can make an assessment and I can form an opinion as to whether [or] not they were afraid or frightened at any time they gave their statements. You know, I can look at them when they sat in the chair and you may have seen them holding their heads and things like that, right? And the state may want you to think that that's because they were intimidated by the defendants.In light of defense counsel's comments, the prosecutor's response was not inappropriate. See Engel, supra, 249 N.J. Super. at 379.
Richardson also asserts for the first time on appeal that the prosecutor improperly stated in closing that Santana's and Thomas's videotaped statements to the police were not played at trial or admitted into evidence because they testified to what they had told the police. The prosecutor's remark was not proper. A summation should be confined to "fair comments on the evidence presented[,]" State v. Harris, 141 N.J. 525, 559 (1995) (citations omitted), and not the legal reasons for not introducing certain evidence. Defense counsel did not object to this comment, however, and it was not sufficiently egregious to require a new trial. Accordingly, we discern no reason to overturn Richardson's conviction.
IV.
Boddie filed a post-trial motion for j.n.o.v. arguing the verdict was inconsistent because the jury found him not guilty of conspiracy but found him guilty of aggravated manslaughter under the theory of accomplice liability predicated on conspiracy. The judge denied the motion, finding he had properly instructed the jury on conspiracy and inconsistent verdicts are not reversible under Dunn v. United States, 2 84 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), or United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984).
We decline to address Boddie's arguments that: (1) the aggravated manslaughter conviction cannot stand because it lacks the necessary predicate of a finding of conspiracy; and (2) he cannot be convicted as an accomplice because the jury was never instructed on that theory. Boddie did not raise these arguments before the trial judge and they do not concern the court's jurisdiction or involve a matter of public importance. State v. Robinson, 200 N.J. 1, 20 (2009).
The standard for deciding a Rule 3:18-2 motion for j.n.o.v. is the same as that used to decide a Rule 3:18-1 motion for acquittal made at the close of the State's case. See State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). We apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996). We must
view the totality of evidence, be it direct or circumstantial, in a light most favorable to the State. More specifically, we must give the government in this setting the benefit of all its favorable testimony as well as of the favorable inferences [that] reasonably could be drawn therefrom[.]
[State v. Perez, 177 N.J. 540, 549 (2003) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
In addition, it is well established that "[c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." State v. Muhammad, 182 N.J. 551, 578 (2005) (citation omitted). Thus, inconsistent verdicts are permitted and accepted in our criminal justice system, and they provide no basis to set aside a jury's determination of guilt. State v. Grey, 147 N.J. 4, 11 (1996).
In reviewing a jury verdict, the court should not attempt to reconcile the counts on which the jury returned a verdict of guilty or not guilty, State v. Federico, 103 N.J. 169, 176-77 (1986), because "[a]n inconsistent verdict may be the product of jury nullification[,]" which is beyond the court's power to prevent. State v. Banko, 182 N.J. 44, 54 (2004). Nor should the court speculate why a jury acquits, or whether the verdict resulted from leniency, mistake or compromise, "[s]o long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt[.]" Grey, supra, 147 N.J. at 10. The test is whether the guilty verdict is supported by sufficient evidence in the record "independent of the jury's determination that evidence on another count was insufficient." State v. Petties, 139 N.J. 310, 319 (1995).
"[T]he Dunn/Powell rule controls inconsistent verdicts in [New Jersey]." Banko, supra, 182 N.J. at 54. In Dunn, the Court held:
Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. . . .
That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.
[Dunn, supra, 284 U.S. at 393-94, 52 S. Ct. at 190-91, 76 L. Ed. at 358-59 (citations omitted).]
In Powell, the Court reaffirmed that inconsistent verdicts are acceptable and non-reviewable, explaining:
The [inconsistent-verdict] rule . . . embodies a prudent acknowledgment of a number of factors. . . . [I]nconsistent verdicts—even verdicts that acquit on a predicate offense while convicting on the compound offense—should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.
[Powell, supra, 469 U.S. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at 468.]
In reaffirming the Dunn/Powell rule that inconsistent verdicts are acceptable, our Supreme Court has held that New Jersey courts "do not speculate why a jury acquits. We accept inconsistent verdicts--and not only when the jury's action benefits a defendant. Such verdicts are permitted 'normally . . . so long as the evidence was sufficient to establish guilt on the substantive offense beyond a reasonable doubt.'" Banko, supra, 182 N.J. at 54-55. (quoting Petties, supra, 139 N.J. at 319).
We conclude it was not reversible error for the jury to find Boddie guilty of aggravated manslaughter after finding him not guilty of conspiracy. The Dunn/Powell rule on inconsistent verdicts clearly permits an acquittal on a predicate offense and conviction on the compound charge, and prevents courts from speculating why the jury acted as it did. Thus, the alleged inconsistency in the jury's verdict in this case does not provide a basis to set aside the jury's determination of guilt. See, e.g., Grey, supra, 147 N.J. at 11; Crisantos, supra, 102 N.J. at 272.
In addition, the evidence well-supported a finding of vicarious liability on Boddie's part. Boddie and Richardson were the last individuals to rent the Maxima; two eyewitnesses identified Boddie as a front-seat passenger; the gunshots were fired through the passenger-side window; within minutes of the shooting, Boddie called Santana, warning her not to say anything to the police, and called her several times thereafter; Boddie also called Thomas, warning her not to say anything to the police; and Boddie fled to Florida shortly after the murder, indicating evidence of consciousness of guilt.
V.
Richardson fled to Tennessee shortly after the murder. Sgt. Barone testified that the FBI provided information from an informant on Richardson's whereabouts in Tennessee. The judge gave a curative instruction instead of granting defendants' request for a mistrial. Boddie contends in Point II that Sgt. Barone's testimony violated State v. Bankston, 63 N.J. 362 (1973), the judge's curative instruction was insufficient to cure the error, and the judge should have granted a mistrial.
The decision to grant a mistrial rests within the sound discretion of the trial court. State v. Harvey, 151 N.J. 117, 205 (1997). The grant of a mistrial is an extraordinary remedy that should be exercised only to prevent manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). In addition:
The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.
[State v. Winter, 96 N.J. 640, 646-47 (1984).]
"It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" Bankston, supra, 63 N.J. at 268. "Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid. "However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule." Ibid. "Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him." Id. at 269.
Of course, a specific hearsay statement is not required in order to create an impermissible inference of guilt. State v. Irving, 114 N.J. 427, 446 (1989); State v. Torres, 313 N.J. Super. 129, 157 (App. Div.), certif. denied, 156 N.J. 425 (1998). "When the logical implication to be drawn from [a witness's] testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Bankston, supra, 63 N.J. at 271. It is the creation of the inference, not the specificity of the statements made, that determines whether the hearsay rule was violated. Irving, supra, 114 N.J. at 447. Nevertheless, the erroneous admission of such testimony is not automatic grounds for reversal, and it may be assessed under the harmless error standard. Bankston, supra, 63 N.J. at 272-73.
"The principle distilled from Bankston and its progeny is that testimony relating [to] inculpatory information supplied by a co-defendant or other non-testifying witness identifying the defendant as the perpetrator of a crime deprives the accused of his or her constitutional rights." State v. Farthing, 331 N.J. Super. 58, 75 (App. Div.), certif. denied, 165 N.J. 530 (2000) (emphasis added); see also Bankston, supra, 63 N.J. at 265, 268 (holding that a detective violated hearsay rule by testifying that he received information from an informant that an individual had narcotics in his possession, and then went to a tavern where he saw and arrested the defendant who fit the informant's description); State v. Taylor, 350 N.J. Super. 20, 34-35 (App. Div.) (holding that the police officer's statements about what various unidentified eyewitnesses told the police about the suspect were inadmissible hearsay because they were offered to elicit accusations against the defendant by non-testifying witnesses), certif. denied, 174 N.J. 190 (2002); State v. Thomas, 168 N.J. Super. 10, 13-15 (App. Div. 1979) (reversing defendant's conviction where prosecutor elicited testimony from detective which led to "inescapable inference" that informant had given him the defendant's name, leading the jury to believe that the unidentified informant told the detective that the defendant committed a crime).
Sgt. Barone's reference to the FBI informant did not lead to the inescapable conclusion that the informant had specifically advised the police that either Boddie or Richardson were involved in any criminal activity. Rather, Sgt. Barone's testimony was that the informant merely provided information about Richardson's whereabouts in Tennessee. Thus, no "impermissible inference" of either defendant's guilt could be reached from Sgt. Barone's testimony.
More importantly, Sgt. Barone did not become specific about what the FBI informant had said. He did not repeat anything the informant said but merely stated that by working with the FBI, the police were able to establish a location for Richardson.
Finally, Bankston, Branch, and Thomas, cited by Boddie, are all distinguishable. In all three of those cases, the informant or non-testifying witness provided the police with information or evidence of the defendant's guilt. See Bankston, supra, 63 N.J. at 265, 268 (informant provided information that an individual had narcotics in his possession; police officer then went to a tavern where he saw and arrested the defendant who fit the informant's description); Branch, supra, 182 N.J. at 352 (defendant was made suspect and his picture placed in photographic array based on the information provided by informant); Thomas, supra, 168 N.J. Super. at 13-15 (testimony led to "inescapable inference" that informant had given police the defendant's name, leading the jury to believe that the unidentified informant told the detective that the defendant committed a crime). As Sgt. Barone clearly testified, the FBI informant merely provided information about Richardson's whereabouts in Tennessee, not about either of the defendant's guilt. Accordingly, there was no error in Sgt. Barone's testimony, and no abuse of discretion in the failure to grant a mistrial.
VI.
Boddie contends in Point IV that his sentence is excessive. The judge found and applied aggravating factor 3, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); aggravating factor 9, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9); and mitigating factor 6, "[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained," N.J.S.A. 2C:44-1b(6). Boddie argues that the judge placed too much weight on the risk of repetition and the need to deter, which was "at least balanced by the mitigating factor which was found," and the judge failed to consider Boddie's clearly subordinate involvement in the crime.
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
The record supported aggravating factor 3. As the judge found, as a juvenile, Boddie had two delinquency adjudications, three violations of probation and two violations of parole. See State v. Pindale, 249 N.J. Super. 266, 288-89 (App. Div. 1991) (holding it was appropriate to consider defendant's prior juvenile record in determining whether his prior criminal history could be considered an aggravating factor). As an adult, Boddie had four arrests, one prior indictable conviction and a violation of probation that resulted in a prison sentence.
The record also supported aggravating factor 9. While "general deterrence unrelated to specific deterrence has relatively insignificant penal value[,]" State v. Jarbath, 114 N.J. 394, 405 (1989), "[d]eterrence of others remains a proper sentencing reason." State v. Martin, 235 N.J. Super. 47, 60 (App. Div.), certif. denied, 117 N.J. 669 (1989); see also State in the Interest of C.A.H., 89 N.J. 326, 334 (1982) ("Deterrence has been repeatedly identified in all facets of the criminal justice system as one of the important factors to be taken into account in the treatment of offenders."). Boddie's criminal history and the general need to deter homicide and gun-related crimes supported this aggravating factor.
As for mitigating factor 6, Boodie did not volunteer to pay restitution; the judge ordered him to make restitution to the Victims of Crime Compensation Office. Thus, this mitigating factor was of little weight because defendant was ordered to pay restitution, and the restitution would not actually compensate the deceased victim or his family.
Boddie cites no authority to support his contention that the judge should have considered his subordinate involvement as a mitigating factor. In any event, the jury obviously acknowledged Boddie's lesser role in the shooting by finding him guilty of the lesser-included offense of aggravated manslaughter while finding Richardson guilty of murder. Further, the judge sentenced Boddie to a seventeen-year term of imprisonment on the first-degree manslaughter conviction, which was significantly less than the thirty-year maximum sentence the judge could have imposed pursuant to N.J.S.A. 2C:11-4c.
We discern no abuse of discretion in Boddie's sentence. The record amply supports the judge's findings, the sentence imposed is within the range of sentences for a first-degree crime, and the sentence does not shock our judicial conscience.
VII.
We decline to address Boddie's contention raised for the first time on appeal in Point III that the conviction was against the weight of the evidence. Defendant did not file a formal motion for a new trial in the trial court. R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972). Absent the filing of a motion for a new trial, we entertain a claim of insufficiency of evidence only when required in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476, (1993). We discern no reason to consider defendant's newly-raised contention. We are satisfied that the record amply supports his guilty verdict.
Richardson's conviction is affirmed; Boddie's conviction and sentence are affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION