DOCKET NO. A-4794-12T1
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-07-0752. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
After a ten day trial, a jury found Laquan Harris guilty of the first-degree murder of Antonio Davis, N.J.S.A. 2C:11-3(a)(1) and -(2); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). On appeal, Harris alleges the trial judge committed error by denying his request to charge the jury on passion/provocation manslaughter, by inadequately addressing a statement made by his counsel in closing, by using the phrase "guilt or innocence" once in the jury charge and by handing down a "manifestly excessive" sentence. We affirm the defendant's conviction and sentence.
On April 13, 2009, defendant Laquan Harris was a few days short of his eighteenth birthday when he shot Antonio Davis in the face. Davis died from his wound. Two hours prior, defendant and Davis had argued, according to a witness, about defendant's presence in the hallway of the apartment complex where Davis may have dealt drugs.
Q. And what precisely . . . did you hear?
A. Well, I was — I heard Mr. Davis telling Mr. Harris not to be in the hallway, that he — he's stupid, he shouldn't be in the hallway, anyway. Mr. Harris pretty much trying to stand up for himself and telling him you can't tell me I can't be in here. They argued back and forth for a little more. Mr. Harris said "Get out of my face, I'm going to put some hot shit in you." Him and Mr. Davis continued a little more.
Thirty minutes before Davis was shot, a witness observed that defendant was still in the building. Shortly after, a gunman was seen running from the building. Another witness who was with Davis when he was shot identified defendant as the shooter.
Defendant's "father figure," Wes Johnson, knew Davis and was his rival. In 2007, Davis and Johnson reportedly had a fist fight that escalated to the point that Johnson fired a shot at Davis. Later in 2007, Johnson actually was shot. Defendant blamed Davis for this and reportedly was upset about the incident.
Defendant was indicted for the murder of Antonio Davis. He was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or -(2); second degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Following a ten-day trial, defendant was convicted on all counts. He was sentenced on the first-degree murder charge to thirty-six years in State prison subject to the parole ineligibility and supervision provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 and to sixteen years of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c). On the second-degree unlawful possession charge, defendant was sentenced to a concurrent term of seven-years incarceration with three years of parole ineligibility. The third count, possession of a weapon for an unlawful purpose, was merged into the first count.
On appeal, defendant raises the following claims:
POINT I - THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING TRIAL COUNSEL'S MOTION FOR A JURY INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER.We affirm the conviction and sentence.
POINT II - THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY INSTRUCTING THE JURY TO DISREGARD TRIAL COUNSEL'S COMMENTS IN SUMMATION REGARDING THE STATE'S FAILURE TO "CONFIRM" [MS.] BOWER'S TRIAL TESTIMONY.
POINT III - THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (NOT RAISED BELOW).
POINT IV - THE THIRTY-SIX (36) YEAR BASE CUSTODIAL TERM IMPOSED ON DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT FAILED TO CONDUCT A PROPER AGGRAVATING FACTOR/MITIGATING FACTOR ANALYSIS.
We begin by addressing Harris's claim that the judge erred by not instructing the jury, over his counsel's objection, on passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). We are satisfied this was not reversible error.
A lesser-included offense is not charged to the jury "unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). The evidence must present a rational basis for a jury to acquit on the greater charge, but convict on the lesser-included charge. See State v. Cassady, 198 N.J. 165, 178 (2009); State v. Jenkins, 178 N.J. 347, 361-64 (2004); State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204. A court must examine first whether "the requested charge satisf[ies] the definition of an included offense set forth in N.J.S.A. 2C:1-8(d)," and second, whether there is "a rational basis in the evidence to support a charge on that included offense." Cassady, supra, 198 N.J. at 178 (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). If there is, the court's failure to give the lesser-included offense charge constitutes reversible error. State v. Brent, 137 N.J. 107, 117-18 (1994). "However, sheer speculation does not constitute a rational basis." Id. at 118.
Passion/provocation manslaughter is a lesser-included charge for murder and is established when a homicide that would otherwise constitute murder under N.J.S.A. 2C:11-3 is "committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). Four elements must be shown: "the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and 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." Ibid.
Defendant claims the verdict should be reversed because the trial court rejected his request to instruct the jury on passion/provocation manslaughter as a lesser-included offense of murder. He claims that "cumulative grievances" are sufficient to support the jury charge and that there was not sufficient time "for the heat of passion to have totally abated." Defendant had "knowledge of the history" between Wes Johnson, his father figure, and Antonio Davis. Johnson and Davis were rivals; Johnson shot at Davis; defendant blamed Davis for Johnson being shot and was upset about that. Two hours before Davis's shooting, defendant and Davis were overheard arguing.
In rejecting defendant's request to give this charge, the trial court considered the argument between Davis and defendant two hours before Davis's death. There was no testimony about any confrontation between defendant and Davis earlier in the day. The threat about hurting Davis was made by defendant. There had been no physical altercation; their argument was verbal. Davis was not armed and had not physically threatened defendant. The judge concluded "[s]o that incident, where the majority of the serious threats during this verbal exchange were directed by the defendant at Davis," did not "warrant a passion[/]provocation charge."
The court also found the incidents in 2007 to be "so far removed in time and in the context of the relationship between Mr. Harris and Mr. Johnson to constitute adequate provocation for the shooting on April 13, 2009, again almost two years after the last incident between Johnson and Davis."
We agree with the trial court that the evidence did not provide a rational basis to support the elements necessary for a passion/provocation charge. The argument in the hallway was verbal. The only threat made was by defendant to the decedent. "Adequate provocation is not satisfied by 'words alone, no matter how offensive or insulting.'" State v. Docaj, 407 N.J. Super. 352, 368 (App. Div.) (quoting State v. Crisantos, 102 N.J. 265, 274 (1986)), certif. denied, 200 N.J. 370 (2009). More than two hours passed between that argument and the actual shooting, which was adequate time to cool off. Also, the two-year time lapse between the 2007 incidents and the shooting was more than ample time to "cool off between the provocation and the slaying." Mauricio, supra, 117 N.J. at 411. There were no intervening incidents between 2007 and the 2009 shooting. All of this fails to show any rational basis for the charge.
Harris next asserts it was reversible error for the trial court to give a curative instruction to the jury advising them to disregard comments by defense counsel about the State's failure to call a witness. Ms. Bowers testified that she and Ms. McRae were together when Bowers overheard the argument between defendant and Davis where defendant threatened Davis about two hours before Davis's shooting. The State did not call McRae as a witness at the trial.
In summation, defense counsel argued the jury may find doubt about what Bowers "exactly heard because she was with somebody else and we don't know what that person may have heard." He argued there may be a lack of evidence "because we don't have that person confirming what [Bowers] says."
Although no objection was made by the prosecutor at the time, the issue was raised first thing the next morning outside the jury's presence and before the prosecutor's closing. Because the court had not been asked to hold a hearing regarding McRae's availability before the comment was made in closing, the prosecutor suggested the trial court provide a curative instruction, but defense counsel objected, contending his comment had merely been a comment on the lack of evidence "as indicating reasonable doubt" and that he had not made an inference "the missing witness would have testified in a manner inconsistent with [Bowers]." If the court were going to give a curative instruction, defense counsel asked the judge to include "there's reasonable doubt from the evidence or from the . . . lack of evidence." The court gave a curative instruction immediately thereafter where he referenced McRae as the person who had been with Bowers. The court instructed as follows:
Now the Court has not made any determination as to the non-production of [McRae] as a witness and as a matter of law, and therefore you should not speculate as to what her testimony would have been if she had been called here to testify . . . nor may you draw any inference against or in favor of either party from [McRae]'s failure to testify. That's not for your consideration, okay. . . .
So I'll ask that you follow that instruction as well as all of the others, okay.
"[W]hen weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." State v. Winter, 96 N.J. 640, 647 (1984). The test is whether the error was "clearly capable of producing an unjust result." State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2).
On appeal, defendant contends the trial court erred in giving any curative instruction because the comments were directed to the State's failure to present proof of defendant's guilt beyond reasonable doubt rather than to an argument of adverse inference. He further objected it was carelessly composed.
In opposition, the State contended the curative instruction was not error because defense counsel "advocated for the jury to make a negative inference from the lack of McRae's testimony." To do so, a hearing must be conducted where the court must make a determination about the absent witness's availability and knowledge. State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986).
The requisite hearing was not conducted because the argument was made for the first time in closing. We agree that the judge's determination to give a curative instruction was appropriate, as was its content and timing. The argument at issue was made during the closing argument at the end of the day. Although the State did not interrupt contemporaneously, the objection was timely made the next morning just before the prosecutor's closing. We find no error in this timing, as it occurred shortly after the remarks were made and before the next event in the trial.
The content of the curative instruction was not objectionable. The court advised the jury they could not speculate about what the testimony of the absent witness might have been nor were they to draw a negative inference. This was appropriate because the judge had not had the ability to hold the required hearing, State v. Hill, 199 N.J. 545, 560-61 (2009); State v. Clawans, 38 N.J. 162, 170-71 (1962), where the witness's availability and "superior" knowledge could be explored because the argument was first made in closing. See State v. Carter, 91 N.J. 86, 128 (1982) (requiring a prior request to make adverse inference argument in summation). Defendant has not argued there was error of constitutional dimension. See State v. La Porte, 62 N.J. 312, 318 (1973) (holding reference to prior arrest is "not of constitutional dimensions" requiring a mistrial).
Finally, there was no error by the court in rejecting defense counsel's additional instruction on reasonable doubt, as the court instructed the jury on that and other issues immediately after the prosecutor's closing.
Defendant next contends the trial court committed plain error requiring reversal by making one reference in the jury charge to the defendant's "guilt or innocence" and in so doing, tended to "reduce the State's burden of proof." The portion of the judge's instruction to the jury at issue, made without objection, was as follows:
Now you know there are multiple charges in the indictment. They are separate offenses by separate counts in the indictment . . . . The defendant is entitled to have his guilt or innocence separately considered on each count and on each charge by the evidence that's relevant and material to that particular charge based on the law that I'll give to you now.
Where no objection is made to a jury instruction this creates "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). We review the instruction to determine whether inclusion of the phrase "guilt or innocence" was plain error, meaning whether the asserted error was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see State v. Vallejo, 198 N.J. 122, 139-40 (2009). An error in a jury instruction "cannot be dealt with in isolation [and] the charge should be examined as a whole to determine its overall effect." State v. Figueroa, 190 N.J. 219, 246 (2007) (Rivera-Soto, J., dissenting) (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)).
We are satisfied that the court's singular reference to innocence did not create an unjust result. R. 2:10-2. In State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003), relied on by defendant, there were multiple references to guilt or innocence throughout the charge. Although requiring a new trial on other grounds, we said that reference to "guilt or innocence" should be avoided in the future because a "verdict of not guilty is not synonymous with innocence[,]" but we did not require a new trial on that issue "in isolation," noting that the trial court had correctly charged the jury on reasonable doubt consistent with State v. Medina, 147 N.J. 43 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997). Ibid.
We have observed that injection of the concept of "innocence" may tend to reduce the State's burden of proof. Ibid. Even so, we later held in State v. Vasquez, 374 N.J. Super. 252, 264-65 (App. Div. 2005), the reference to guilt or innocence did not amount to plain error where the court had instructed the jury with respect to the separate offenses charged that "the defendant is entitled to have his guilt or innocence separately considered on each count[,]" because the court saw "no likelihood that the judge's misstatement affected the jury's verdict this case."
We affirm here because, in contrast to White, reference to innocence was not made repeatedly by the trial judge. No objection was raised by the defense, giving the presumption the charge was not objectionable. The court did provide a Medina charge regarding reasonable doubt and, in any event, the reference to innocence was made when discussing separate charges and not in the instruction on reasonable doubt. Taking the charge as a whole, we see no likelihood this isolated statement affected the burden of proof in this case.
Defendant appeals the length of his sentence as "manifestly excessive" by contending the trial court failed to make proper consideration of three mitigating factors which he says would have warranted "if not the imposition of the minimum authorized thirty-year custodial base sentence," a sentence shorter than the thirty-six year term that was imposed.
Our review of a sentencing determination is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will ordinarily not disturb a sentence imposed unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 364-65); see also State v. O'Donnell, 117 N.J. 210, 215-16 (1989). In sentencing, the trial court considers relevant aggravating factors and mitigating factors. See N.J.S.A. 2C:44-1(a) and -(b). The court then must "determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215.
Defendant contends that the judge ignored three mitigating factors that were present, namely factor three, involving provocation; factor five, inducement of his actions by the victim; and factor thirteen, defendant's youth, and that these should have been considered by the judge. Defendant contends as well that the judge misapplied the court's sentencing discretion by relying on defendant's prior juvenile record because this was defendant's first adult conviction.
The permissible sentencing range for the crime of first-degree murder is thirty years in prison with a thirty-year parole disqualifier to life imprisonment with a thirty-year parole disqualifier. N.J.S.A. 2C:11-3(b)(1). A defendant can be sentenced beyond the minimum if the judge finds the aggravating factors outweigh the mitigating factors. N.J.S.A. 2C:44-1(f)(1); State v. Natale, 184 N.J. 458, 466 (2005). Here, the sentence on the murder charge was thirty-six years of imprisonment with a thirty-year period of parole ineligibility under NERA and a sixteen-year period of parole ineligibility under the Graves Act.
The sentencing judge found aggravating factors three, six and nine. The risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), and the extent and seriousness of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6), were supported by defendant's juvenile record and violations of probation while a juvenile, while the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9), was supported by "a need to deter senseless killings such as this." The court then considered, but did not find, the presence of mitigating factors three, five and thirteen, specifically concluding there was no strong provocation, N.J.S.A. 2C:44-1(b)(3), that the victim's conduct did not "induce or facilitate" the crime, N.J.S.A. 2C:44-1b(5), and that the youthful defendant was not influenced by another more mature person, N.J.S.A. 2C:44-1(b)(13), because there was no evidence Wes Johnson "encouraged or influenced" defendant, who "alone . . . decided to seek retribution and vengeance."
We find no basis to disturb the sentence that was imposed. There was no error in the court's analysis of the aggravating and mitigating factors. The judge did not ignore the mitigating factors; rather based on the record, he properly concluded they did not apply. With respect to the aggravating factors, the court was careful to utilize defendant's prior violations of probation in support of aggravating factor three and took into account his juvenile record in support of aggravating factor six, which concerns "prior criminal record and the seriousness of the offenses[.]" N.J.S.A. 2C:44-1(a)(6). See State v. Pindale, 249 N.J. Super. 266, 288 (App. Div. 1991) (holding a prior juvenile record was "appropriately considered" in evaluating factor six). There was nothing "shocking" about this sentence. See Fuentes, supra, 217 N.J. at 70. The sentence was six years more than the minimum for first-degree murder. Because defendant's sentence was set toward the bottom of the sentencing range, the effect of NERA was considered and minimized. State v. Marinez, 370 N.J. Super. 49, 59 (App. Div.), certif. denied, 182 N.J. 142 (2004).
Accordingly, we affirm the conviction and sentence. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION