STATE OF NEW JERSEY VS. ROBERT BELL (13-01-0004, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5389-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT BELL, a/k/a SHABAZZ

HAKIM, BELL JAY and SHABAZZ H,

Defendant-Appellant.

_______________________________

Submitted May 15, 2018 – Decided August 3, 2018

Before Judges Yannotti, Carroll, and

DeAlmeida.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, Indictment

No. 13-01-0004.

Joseph E. Krakora, Public Defender, attorney

for appellant (Michele E. Friedman, Assistant

Deputy Public Defender, of counsel and on the

briefs).

Gurbir S. Grewal, Attorney General, attorney

for respondent (Sarah D. Brigham, Deputy

Attorney General, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Robert Bell appeals his June 20, 2016 judgment of

conviction and sentence for the first-degree attempted murder of

Joseph Battle, and related charges. We affirm.

I.

The following facts are derived from the record. On July 26,

2012, defendant and the victim were at a party at a house in

Franklinville. Defendant's girlfriend, Dorothea Withers, who is

also the victim's sister, was present. Other members of the

victim's family were also party guests: Denise Battle and Joann

Rankin, two of his sisters; Daniesha Battle, his niece; and

Jonathan Battle, his nephew. Brooke Hansen, in whom the victim

had a romantic interest, was also present.

Dorothea1 started a fight with Brooke over a debt that Brooke

owed defendant. At the time, the victim and Brooke were sitting

in Brooke's car. After a stick or bat broke the car window, Brooke

asked the victim to exit the vehicle. She then left the party.

About forty-five minutes later, defendant and the victim

engaged in a verbal dispute related to the previous incident. The

argument escalated into a physical altercation between the two

men, who engaged in fisticuffs, and fell to the ground wrestling.

1

Because the victim and some witnesses share the same last name

we refer to the parties by their first names. No disrespect is

intended.

2 A-5389-15T2

Joann, Denise, and Jonathan broke up the fight, physically

separating the men. Jonathan pulled the victim off defendant and

told him to "leave that man alone and go home." He also pushed

defendant away from the victim and told him to "leave that dumb

shit alone." Once the men were separated, Denise told the victim

to go into the house, and defendant to go in a different direction.

Although the two were still exchanging words, the victim

began walking away from defendant. As the victim was about to

enter the house, defendant said "I'm going to shoot you," and

reached into his pocket as if he were retrieving a gun. Denise

testified that at that time she heard other guests at the party

say, "he's about to shoot."

The gun was not fully visible because it was wrapped in a

bag, rag, or sock. Denise, however, saw its wooden handle. She

also saw defendant "fiddle" underneath the material hiding the

weapon. Dorothea testified that she saw defendant with a sock,

which she told police might have contained a gun. She had

previously seen defendant in possession of a handgun.

Defendant pointed the gun at the victim's stomach and pulled

the trigger. The gun clicked, but no shot fired. Defendant pulled

the trigger a second time, shooting the victim in the right leg,

as the victim was in the doorway trying to enter the house.

3 A-5389-15T2

After the shooting, defendant told Dorothea to "come on" and

"get [him] the hell out of there." Dorothea and defendant left

in her car with Jonathan running after them.

At about that time, Sergeant James Reilly of the Franklin

Township Police Department was arriving at a home near the location

of the party on an unrelated call. As he arrived, the homeowner

told Reilly he had heard gunshots. The officer then received a

radio dispatch of a reported gunshot victim at the party. Reilly

observed Dorothea's car speed past him, but headed to the party

to provide aid to the victim. Before the officer reached the

scene of the shooting, Jonathan approached his patrol car and said

that the shooter was in the car that had passed the officer.

Reilly pursued Dorothea's vehicle and stopped it nearby.

Defendant exited the vehicle and ran into the woods before he

could be detained by the officer. His flight was recorded on the

patrol vehicle's video recorder. Police were unable to apprehend

defendant that evening.

The victim was treated by medical personnel and transported

to a local hospital. Detective John Petroski of the Gloucester

County Prosecutor's Office met with the victim at the hospital

approximately two hours and forty-five minutes after the shooting.

The victim, who was in a bed being treated by medical personnel,

was largely uncooperative, stating that he wanted to "take care"

4 A-5389-15T2

of the shooter himself. He did, however, tell the officer that

the shooter was his "brother-in-law" with whom he lives. The

detective made an audio recording of the victim's interview.

After interviewing the victim, Petroski went to police

headquarters to interview witnesses. Denise, Joann, Jonathan,

Daniesha, and Dorothea all identified defendant as the shooter.

With information provided by these witnesses, police traced

a cellphone believed to be in defendant's possession to a motel

in the area of the shooting. Although defendant was not present

when an investigating officer arrived, the officer testified that

he reviewed a motel surveillance video on which he saw a man enter

the motel lobby and secure a room key. The officer testified that

the man in the video resembled a composite sketch of defendant

given to him by another officer.

Five days after the shooting, defendant was apprehended at a

hotel in Philadelphia. At the time of his arrest, defendant had

scrapes and marks, particularly on his upper body, consistent with

having recently run through brush or sticker bushes.

A grand jury indicted defendant for: first-degree attempted

murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1); second-degree

possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-

4(a); second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b); second-degree aggravated assault causing serious

5 A-5389-15T2

bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated

assault causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-

1(b)(2); fourth-degree aggravated assault by pointing a firearm,

N.J.S.A. 2C:12-1(b)(4); and second-degree certain persons not to

have weapons, N.J.S.A. 2C:39-7(b)(1).

At trial, five eyewitnesses identified defendant as the

shooter. The victim, on the other hand, testified that although

he and defendant had a physical altercation at the party, they

went their separate ways after the fight broke up. He testified

that he did not know who shot him, and denied having told the

detectives that his brother-in-law shot him.

Defendant did not testify. In summation, his counsel argued

that defendant did not shoot the victim, and that another,

unidentified guest at the party fired the shot, and left before

the police arrived. Counsel claimed that defendant coincidentally

left the party with Dorothea just after the shooting.

After a ten-day trial, a jury convicted defendant of all

charges. On May 2, 2016, the State moved for an extended term

based on defendant's status as a persistent offender under N.J.S.A.

2C:44-3(a). The trial court granted the motion, and sentenced

defendant to an extended term of thirty years imprisonment, with

an eighty-five percent period of parole ineligibility under the

No Early Release Act, N.J.S.A. 2C:43-7.2, for first-degree

6 A-5389-15T2

attempted murder. This sentence is to run concurrent with a term

of ten years imprisonment, with a five-year period of parole

ineligibility for second-degree unlawful possession of a firearm.

The court imposed a consecutive ten-year term of imprisonment,

with a five-year period of parole ineligibility on the certain-

persons conviction. The remaining counts were merged into the

attempted murder conviction. Defendant, therefore, received an

aggregate term of forty years of imprisonment, with a parole

ineligibility period of thirty years and six months.

This appeal followed. Before us, defendant, in a brief filed

by counsel, raises the following points:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

FAILING TO CHARGE THE JURY ON THE LESSER-

INCLUDED OFFENSE OF ATTEMPTED PASSION/

PROVOCATION MANSLAUGHTER. (NOT RAISED BELOW).

POINT II

WHEN ISSUING THE JURY CHARGE FOR POSSESSION

OF A FIREARM FOR AN UNLAWFUL PURPOSE, THE

COURT REFUSED TO PROVIDE THE JURY WITH THE

PORTION OF THE MODEL CHARGE EXPLAINING THE

DEFENSE, MERELY BECAUSE THE DEFENDANT DID NOT

TESTIFY.

POINT III

THE STATE IMPROPERLY INTRODUCED THE VICTIM'S

STATEMENT ON REDIRECT EXAMINATION.

7 A-5389-15T2

POINT IV

THE ADMISSION OF JONATHAN'S STATEMENT PURSUANT

TO N.J.R.E. 803(c)(5) VIOLATED ROBERT'S

CONFRONTATION CLAUSE RIGHTS.

POINT V

WHEN ISSUING INSTRUCTIONS AT THE CERTAIN

PERSONS TRIAL, THE TRIAL COURT REPEATEDLY

REFERENCED THE UNSANITIZED DETAILS OF ROBERT'S

PRIOR CONVICTIONS, THEREBY DEPRIVING HIM OF A

FAIR TRIAL. (PARTIALLY RAISED BELOW).

POINT VI

THIS COURT SHOULD REMAND THE MATTER FOR

RESENTENCING BECAUSE THE SENTENCING COURT

ACCORDED UNDUE WEIGHT TO ROBERT'S RECORD,

ERRONEOUSLY IMPOSED CONSECUTIVE SENTENCES ON

THE ATTEMPTED MURDER AND CERTAIN PERSONS

OFFENSES, AND IMPROPERLY CONSIDERED ROBERT'S

REFUSAL TO ACKNOWLEDGE GUILT.

In a supplemental pro se brief, defendant raises the following

arguments:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

FAILING TO CHARGE THE JURY ON THE LESSER-

INCLUDED OFFENSE OF ATTEMPTED

PASSION/PROVOCATION MANSLAUGHTER, THIS

DEPRIVED APPELLANT OF A FAIR TRIAL AND DUE

PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV;

N.J. CONST. ART I, PARAS. I, 10.

8 A-5389-15T2

POINT II

WHEN ISSUING THE JURY CHARGE FOR POSSESSION

OF A FIREARM FOR AN UNLAWFUL PURPOSE, THE

TRIAL COURT REFUSED TO PROVIDE THE JURY WITH

THE PORTION OF THE MODEL CHARGE EXPLAINING THE

DEFENSE, MERELY BECAUSE THE DEFENDANT DID NOT

TESTIFY. THIS VIOLATED APPELLANT'S RIGHTS TO

A FAIR TRIAL AND DUE PROCESS OF LAW. U.S.

CONST. AMENDS. VI, V, XVI; N.J. CONST. ART I,

¶ I, 9, 10.

POINT III

THE TRIAL COURT FAILED TO GIVE THE JURY

INSTRUCTION THAT INTOXICATION IS A DEFENSE TO

ALL OF THE COUNTS IN THE INDICTMENT, THIS

DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS

AND A FAIR TRIAL, REQUIRING REVERSAL. (NOT

RAISED BELOW).

POINT IV

THE LAY OPINION TESTIMONY OF LAW-ENFORCEMENT

WITNESSES ABOUT WHAT THEY BELIEVED THEY SAW

ON THE SURVEILLANCE VIDEO [DEPRIVED] DEFENDANT

OF A FAIR TRIAL.[2]

POINT V

THE TRIAL COURT ERRED IN NOT GRANTING

DEFENDANT-PETITIONER[‘S] MOTION FOR A NEW

TRIAL ON THE GROUNDS THAT THE VERDICT WAS

AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI

THE PROSECUTOR'S OFFICE VIOLATED ITS POST-

INDICTMENT DISCOVERY OBLIGATIONS UNDER RULE

3:13-3, WHEN ITS INVESTIGATOR DESTROYED HIS

INVESTIGATION NOTES. (NOT RAISED BELOW).

2

Brackets in original.

9 A-5389-15T2

POINT VII

THE TRIAL COURT ABUSED HIS DISCRETION BY USING

FACTS TO SENTENCE DEFENDANT THAT WERE NEVER

PRESENTED TO THE JURY.

POINT VIII

THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED

OF RENDERED THE TRIAL UNFAIR.

Having considered these arguments in light of the record and

applicable legal standards, we affirm.

II.

We address defendant's arguments in turn.

1. Jury Instruction on Attempted

Passion/Provocation Manslaughter.

Defendant argues that the evidence presented at trial clearly

indicated that he could have been convicted of attempted

passion/provocation manslaughter, which is a lesser-included

offense to attempted murder. He argues that the trial court was

obligated to sua sponte instruct the jury on this lesser-included

offense despite defendant's failure to request the instruction.

We disagree.

It is well-settled that “[a]ccurate and understandable jury

instructions in criminal cases are essential to a defendant's

right to a fair trial.” State v. Concepcion, 111 N.J. 373, 379

(1988). However, "[i]f the defendant does not object to the charge

at the time it is given, there is a presumption that the charge

10 A-5389-15T2

was not error and was unlikely to prejudice the defendant's case."

State v. Singleton, 211 N.J. 157, 182 (2012).

Therefore, "the failure to object to a jury instruction

requires review under the plain error standard." State v.

Wakefield, 190 N.J. 397, 473 (2007).

As applied to a jury instruction, plain error

requires demonstration of "legal impropriety

in the charge prejudicially affecting the

substantial rights of the defendant and

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."

[State v. Chapland, 187 N.J. 275, 289 (2006)

(quoting State v. Hock, 54 N.J. 526, 538

(1969)).]

The mere possibility of an unjust result is not enough to warrant

reversal of a conviction. State v. Jordon, 147 N.J. 409, 422

(1997). The error "must be evaluated in light of the overall

strength of the State's case." State v. Walker, 203 N.J. 73, 90

(2010) (quoting Chapland, 187 N.J. at 289).

The trial court's decision to charge on a lesser-included

offense is governed by N.J.S.A. 2C:1-8(e). Under the statute, the

trial court cannot charge a jury on "an included offense unless

there is a rational basis for a verdict convicting the defendant

of the included offense." N.J.S.A. 2C:1-8(e). "[A] trial court

has an independent obligation to instruct on lesser-included

11 A-5389-15T2

charges when the facts adduced at trial clearly indicate that a

jury could convict on the lesser while acquitting on the greater

offense." State v. Jenkins, 178 N.J. 347, 361 (2004) (citing

State v. Garron, 177 N.J. 147, 180 (2003)). However, "when the

defendant fails to ask for a charge on lesser-included offenses,

the court is not obliged to sift meticulously through the record

in search of any combination of facts supporting a lesser-included

charge." State v. Denofa, 187 N.J. 24, 42 (2006). "[T]he need

for the charge must 'jump off' the proverbial page." State v.

R.T., 205 N.J. 493, 510 (2011).

"Passion/provocation manslaughter is an intentional homicide

committed under extenuating circumstances that mitigate the

murder." State v. Robinson, 136 N.J. 476, 481 (1994). A criminal

homicide may be considered manslaughter when "[a] homicide which

would otherwise be murder under section 2C:11-3 is committed in

the heat of passion resulting from a reasonable provocation."

N.J.S.A. 2C:11-4(b)(2). "Thus, passion/provocation manslaughter

is considered a lesser-included offense of murder: the offense

contains all the elements of murder except that the presence of

reasonable provocation, coupled with defendant's impassioned

actions, establish a lesser culpability." Robinson, 136 N.J. at

482; see N.J.S.A. 2C:1-8(d)(3). N.J.S.A. 2C:5-1 makes criminal

12 A-5389-15T2

all attempts to commit other crimes defined in the Code, including

passion/provocation manslaughter. Robinson, 136 N.J. at 486.

In our jurisprudence, attempted

passion/provocation manslaughter is comprised

of 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. Funderburg, 225 N.J. 66, 80 (2016)

(citing State v. Mauricio, 117 N.J. 402, 411

(1990)).]

The first two criteria are objective, and the second two are

subjective. Mauricio, 117 N.J. at 411.

"In determining whether to instruct a jury on passion/

provocation manslaughter, the trial judge must view the evidence

in the light most favorable to defendant." State v. Viera, 346

N.J. Super. 198, 212 (App. Div. 2001). As the Supreme Court

explained,

a trial court in charging a jury sua sponte

must find first that the two objective

elements of passion/provocation manslaughter

are clearly indicated by the evidence. If

they are, the two subjective elements should

"almost always be left for the jury." That

standard is equally applicable to a trial

court's decision to charge a jury sua sponte

on attempted passion/provocation

manslaughter.

[Robinson, 136 N.J. at 491.]

13 A-5389-15T2

The two objective elements are whether the provocation was

adequate and whether there was time for the defendant to cool off

before the slaying. The measure of adequate provocation is whether

"loss of self-control is a reasonable reaction." Mauricio, 117

N.J. at 412. "The 'provocation must be sufficient to arouse the

passions of an ordinary [person] beyond the power of his [or her]

control.'" Robinson, 136 N.J. at 491 (quoting Mauricio, 117 N.J.

at 412 (alterations in original) (quotations omitted)). "The

generally accepted rule is that words alone, no matter how

offensive or insulting, do not constitute adequate provocation to

reduce murder to manslaughter." Funderburg, 225 N.J. at 80

(quoting State v. Crisantos, 102 N.J 265, 274 (1986)). "[M]utual

combat under certain circumstances can constitute adequate

provocation to reduce murder to manslaughter, [but] the

provocation must be proportionate to the manner of retaliation

. . . ." State v. Darrian, 255 N.J. Super. 435, 449 (App. Div.

1992).

As for the cooling-off period, the Supreme Court has said "it

is well-nigh impossible to set specific guidelines in temporal

terms," therefore "[t]rial courts are . . . remitted to the sense

of the situation as disclosed by the facts." Mauricio, 117 N.J.

at 413. In Mauricio, the Court found that a half hour was not,

as a matter of law, a sufficiently long enough period of time such

14 A-5389-15T2

that "no jury could rationally determine that a reasonable person's

inflamed passions might not have cooled sufficiently to permit the

return of self-control." Id. at 415.

Here, the evidence demonstrated that defendant and the victim

were engaged in an argument, which included physical violence,

before the shooting. However, several witnesses testified that

the physical altercation had ended, and defendant and the victim

had been separated before defendant shot the victim. In addition,

at the time of the shooting, the victim was retreating from the

confrontation, was unarmed, and posing no physical threat to

defendant. Although defendant and the victim were engaged in a

verbal exchange prior to the shooting, as noted above, words alone

are never sufficient to justify a passion/provocation manslaughter

instruction. These facts certainly do not jump off the page

suggesting sufficient provocation to justify a sua sponte charge.

Additionally, the Supreme Court has recognized that attempted

passion/provocation manslaughter will "remain unfamiliar, because

there are few instances in which a defendant charged with attempted

homicide will want to raise before a jury the argument that he or

she actually intended to kill." Funderburg, 225 N.J. at 80

(quoting Robinson, 136 N.J at 493). Here, a jury charge on

attempted passion/provocation manslaughter, which would require

the jury to find that defendant intended to kill the victim, would

15 A-5389-15T2

have undermined defendant's theory that he was not the shooter.

A sua sponte instruction on a charge that contradicts the

defendant's theory of the case would have compounded the defense

he advanced to the jury, militating against a conclusion of plain

error. R.T., 205 N.J. at 513-14 (Long, J., concurring).

2. Jury Instruction on Possession of

a Firearm for an Unlawful Purpose.

Defendant argues that the court erred in its jury charge on

the count alleging possession of a firearm for an unlawful purpose.

Defendant argues that the court should have instructed the jury

as to the affirmative defense that defendant contended that he

never was in possession of a firearm.

The Model Jury Charge for possession of a firearm with a

unlawful purpose requires the court to describe the four elements

of the crime: (1) that there was a firearm; (2) that defendant

possessed the firearm; (3) that defendant possessed the firearm

with the purpose to use it against the person or property of

another; and (4) that defendant's purpose was to use the firearm

unlawfully. Model Jury Charges (Criminal), "Possession Of A

Firearm With A Purpose To Use It Unlawfully Against The Person Or

Property Of Another (N.J.S.A. 2C:39-4)," (rev. June 16, 2003).

The court must also instruct the jury that it is the State's burden

16 A-5389-15T2

to prove each element beyond a reasonable doubt, and explain what

is necessary to meet that burden. Ibid.

The instruction must include the alleged unlawful purpose

because "[a] jury is not qualified to say without guidance which

purposes for possessing a gun are unlawful under N.J.S.A. 2C:39-

4(a) and which are not." State v. Jenkins, 234 N.J. Super 311,

316 (App. Div. 1989). The Model Jury Charge provides a space to

state defendant's purported lawful purpose, if one is offered.

Here, at the jury-charge conference, the trial court sua

sponte raised with counsel the need to include in the instructions

an affirmative defense that defendant never was in possession of

a weapon. The State, although not objecting to including the

charge, noted that defendant did not testify and, therefore, did

not deny possessing a weapon. The State argued that including the

affirmative defense in the jury instructions would, in effect,

permit defendant to testify without being subject to cross-

examination. The trial court decided, without objection from

defendant, not to include the affirmative defense instruction.

The court thereafter charged the jury with the model

instructions. The charge, therefore, is presumptively proper.

State v. R.B., 183 N.J. 308, 325 (2005). Jurors were instructed

that possession of a weapon was an essential element of the charge,

and that the State had the burden of proving that element, and all

17 A-5389-15T2

other elements, beyond a reasonable doubt. The instructions had

all "essential and fundamental issues and . . . substantially

material points," State v. Green, 86 N.J. 281, 290 (1981),

providing the jury with "a comprehensible explanation of the

questions that [they] must determine . . . ." Id. 287.

We review the court's jury instructions for plain error. We

see nothing in the instructions clearly capable of causing an

unjust result. The court clearly and repeatedly instructed the

jury that in order to convict defendant of the charge they must

find beyond a reasonable doubt that he possessed a weapon for an

unlawful purpose. Defendant's counsel had an opportunity to cross-

examine the witnesses who testified that defendant was in

possession of a gun, and to argue in summation that the State had

not met its burden of proving the elements of the charge, including

defendant's possession of the gun, beyond a reasonable doubt.

3. Jury Charge on Intoxication Defense.

In his pro se brief, defendant argues that the trial court

should have sua sponte instructed the jury on voluntary

intoxication as a defense because several witnesses testified that

defendant was drinking alcohol before the shooting. We disagree.

A conviction of murder requires proof that the defendant

acted purposely or knowingly. N.J.S.A. 2C:11-3(a)(1), (2). "To

act purposely requires a conscious objective to engage in conduct

18 A-5389-15T2

or to cause the result of conduct, while to act knowingly requires

awareness of the nature of the conduct involved." State v. Sette,

259 N.J. Super. 156, 170 (App. Div. 1992); see N.J.S.A. 2C:2-

2b(1), (2). "[W]hen the requisite culpability for a crime is that

the person act 'purposely' or 'knowingly,' evidence of voluntary

intoxication is admissible to disprove that requisite mental

state.” State v. Cameron, 104 N.J. 42, 53 (1986). Voluntary

intoxication can reduce the offense of purposeful or knowing murder

to manslaughter or aggravated manslaughter. State v. Warren, 104

N.J. 571, 577 (1986).

In order for intoxication to diminish "the capacity to act

purposely or knowingly, the intoxication must be of an extremely

high level; it must have caused a 'prostration of faculties' in

the defendant." Sette, 259 N.J. Super. at 170 (quoting Cameron,

104 N.J. at 54). "[A] jury issue arises only if there exists a

rational basis for the conclusion that defendant's" intoxication

has reached a level where "he or she was incapable of forming an

intent to commit the crime." Mauricio, 117 N.J. at 418-19.

Because defendant did not request an intoxication charge, we

review his argument on this point for plain error. A review of

the record reveals a lack of evidence that defendant was incapable

of acting with the requisite intent. While several witnesses

testified that defendant was seen drinking alcohol at the party,

19 A-5389-15T2

no one testified that his faculties were so prostrated that he was

incapable of forming a knowing or purposeful intent to kill the

victim. Simply put, there was no evidence on which the jury could

reasonably have concluded that defendant established a voluntary-

intoxication defense to the attempted murder charge.

4. Admission of the Victim's Redacted

Recorded Statement to Police.

Defendant challenges the trial court's admission under

N.J.R.E. 803 of the audio recording of the victim's statement to

police at the hospital. The victim testified that he "probably"

was given morphine prior to the hospital interview, but that he

remained coherent, and was not drunk when talking to detectives.

He acknowledged referring to defendant as his brother-in-law, but

denied having told detectives that his brother-in-law shot him.

The State moved to play the audio recording of the victim's

statement to police at the hospital. Defendant objected, arguing

that the statement was not reliable because the victim was

intoxicated and medicated when he made the statement.

N.J.R.E. 803(a) provides, in relevant part,

The following statements are not excluded by

the hearsay rule:

PRIOR STATEMENTS OF WITNESSES. A statement

previously made by a person who is a witness

at a trial or hearing, provided it would have

been admissible if made by the declarant while

testifying and the statement:

20 A-5389-15T2

(1) is inconsistent with the witness'

testimony at the trial or hearing and is

offered in compliance with Rule 613. However,

when the statement is offered by the party

calling the witness, it is admissible only if,

in addition to the foregoing requirements, it

(A) is contained in a sound recording or in a

writing made or signed by the witness in

circumstances establishing its reliability

. . .; or

. . . .

(3) is a prior identification of a person

made after perceiving that person if made in

circumstances precluding unfairness or

unreliability.

At a hearing to determine the reliability of the statement,

Detective Petroski testified that during the interview it appeared

that the victim had been drinking and emitted an odor of alcohol.

The detective, however, believed that the alcohol was not affecting

the victim's coherency, that he was responsive to questions, and

appeared to be answering truthfully. Petroski testified that the

victim's speech was a little slurred and his eyes were a little

glassy. He noted that the victim was focused on his questions,

was wide awake, never "faded off," and appeared to be sobering up.

The detective’s observations were based on his professional

experience, including conducting drunk-driving stops, training,

and interactions with intoxicated people. Finally, Petroski

testified that he ended the interview because he thought the victim

21 A-5389-15T2

was not being completely forthright, given his desire to exact

revenge on the shooter.3

The trial court found that a redacted version of the victim's

recorded police statement would be admissible under both N.J.R.E.

803(a)(1) and (a)(3). The court found that the victim's level of

intoxication and medical treatment did not make him incoherent or

affect the reliability of his statement to Detective Petroski. In

addition, the court found that the victim intentionally did not

identify defendant by name because he wanted to exact revenge

without involving the police, and that he obstructed the interview

in order to encourage the detectives to leave. The court found

the victim's behavior was indicative of a control of his faculties.

"Trial judges are entrusted with broad discretion in making

evidence rulings." State v. Harris, 209 N.J. 431, 439 (2012).

"Trial court evidentiary determinations are subject to limited

appellate scrutiny, as they are reviewed under the abuse of

discretion standard." State v. Buda, 195 N.J. 278, 294 (2008).

3

A physician who treated the victim testified that the victim

did not appear intoxicated because he did not slur his speech, and

answered questions appropriately. The physician also testified

that a test indicated that the victim's blood alcohol level was

2.5 times the legal limit for drunk driving. He explained,

however, that the test results could have been affected by an

alcohol wipe of the victim's arm prior to the injection for the

test or prior to the insertion of an IV tube. He also testified

that he gave the victim Dilaudid, a pain relief medication. The

physician testified that Dilaudid does not affect coherency.

22 A-5389-15T2

We do not substitute our judgment for that of the trial court,

unless "the trial court's ruling 'was so wide of the mark that a

manifest denial of justice resulted.'" State v. Marrero, 148 N.J.

469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

N.J.R.E. 803(a)(1) is designed "to limit substantive

admissibility of prior inconsistent statements . . . to those

statements given in a form and under circumstances importing

special reliability." State v. Gross, 121 N.J. 1, 9 (1990)

(citations omitted). "Such statements must pass the double hurdle

of a . . . hearing on admissibility and in-court cross-examination

prior to a finding on sufficiency." State v. Mancine, 124 N.J.

232, 248 (1991). "The determination of the reliability of pretrial

statements must take into account all relevant circumstances."

State v. Michaels, 136 N.J. 299, 317 (1994). In Gross, the Court

detailed the range of factors that might bear on the reliability

of a pretrial statement, including the person or persons to whom

the statement was made, the manner and form of interrogation,

physical and mental condition of the declarant, the use of

inducements, threats or bribes, and the inherent believability of

the statement. 121 N.J. at 10.

At a reliability hearing, "the court should be convinced by

a preponderance of the evidence that the evidence is sufficiently

reliable for presentation to the jury . . . ." State v. Brown,

23 A-5389-15T2

138 N.J. 481, 539 (1994). Additionally, “when a witness testifies

at trial inconsistent with a signed or sound-recorded statement,

admissible under N.J.R.E. 803(a)(1), the Confrontation Clause is

not offended by the reading or playing of the out-of-court

statement to the jury provided that the defendant has the

opportunity to cross-examine the witness.” State v. Cabbell, 207

N.J. 311, 336 (2011).

We cannot say that the trial court abused its discretion when

admitting the victim's recorded prior inconsistent statement

identifying the shooter. The record contains substantial,

credible evidence supporting the trial court's finding that the

victim was sufficiently sober, and the circumstances of his

interview sufficiently trustworthy, to allow for admission of the

audio recording of his statement to police. Moreover, the victim

was given an opportunity during his testimony to explain or disavow

his prior statement, and defendant had the opportunity to cross-

examine the witness, satisfying N.J.R.E. 613(b).

Defendant also argues that the victim’s statement could not

be deemed a prior identification because he did not identify

defendant with specificity. Defendant points out that the victim

calls each of his sisters' spouses or boyfriends his "brothers-

in-law." Thus, according to defendant, the victim's statement

could be interpreted to identify several people as the shooter.

24 A-5389-15T2

The Supreme Court has stated that "[r]eliability is the

linchpin in determining the admissibility of identification

testimony." State v. Madison, 109 N.J. 223, 232 (1988) (quoting

Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). As was the case

with the victim's prior inconsistent statement, the circumstances

surrounding the victim's identification of his assailant support

the trial court's finding of reliability.

An eyewitness need not know or provide the name of an

assailant to make a reliable identification. State v. Swed, 255

N.J. Super. 228, 247 (App. Div. 1992) (holding that testimony that

defendant resembles a person observed by the witness, is of the

same size or general appearance, or has physical features close

to accused is sufficient to constitute an identification). Here,

the victim's recorded identification of defendant, one of several

people the victim called his "brother-in-law," was entered after

several eyewitnesses identified defendant as the shooter,

corroborating the reliability of the victim's recorded

identification. The defendant had an opportunity to cross-examine

the victim and argue to the jury that the recorded identification

was ambiguous and sufficient to create a reasonable doubt.

25 A-5389-15T2

5. Admission of Jonathan's Statement

to Police.

Defendant challenges the trial court's decision to permit a

police report containing a statement Jonathan, the victim's

nephew, made to police shortly after the shooting, to be read to

the jury. He argues that admission of the statement violated his

right to confrontation under the federal and State Constitutions.

At trial, Jonathan testified that while he could identify

defendant, he could not remember what he witnessed on July 26,

2012, because of a medical condition. His review of a police

report that included the statement he gave to detectives after the

shooting did not refresh his memory. He testified that he could

not even recall going to the police station, or being interviewed

by detectives.

Outside the presence of the jury, Jonathan testified that he

receives government benefits for a recognized disability that

affects his reading comprehension and long-term memory. The trial

court found Jonathan’s testimony to be credible, and determined

that he genuinely had no recollection of the events of the night

in question. The judge, over defendant's objection, found that

Jonathan’s statement to police, recorded four to six hours after

the shooting when the facts, based on his personal observations,

were fresh in his mind, was admissible under N.J.R.E. 803(c)(5).

26 A-5389-15T2

After Jonathan’s statement was read to the jury, he was

subject to cross-examination. Defendant's counsel's questions

emphasized that Jonathan had a medical condition that affected his

long-term memory, and that he did not remember anyone being shot

on July 26, 2012, or any other details of that night's events, or

the interview with detectives in the hours after the shooting.

Both the Sixth Amendment to the United States Constitution

and Article I, Paragraph 10 of the New Jersey Constitution provide

that in a criminal trial the accused has the right "to be

confronted with the witnesses against him." U.S. Const. amend.

VI; N.J. Const. art. I, ¶ 10. The Confrontation Clauses prohibit

the use of a witness's out-of-court testimonial hearsay statement

as a substitute for in-court testimony when a defendant has not

been given the opportunity to cross-examine the witness. Cabbell,

207 N.J. at 329; California v. Green, 399 U.S. 149, 158 (1970).

The Sixth Amendment "'places no constraints at all on the use

of [a witness's] prior testimonial statements,' provided that 'the

[witness] appears for cross-examination at trial.'" State v.

Nyhammer, 197 N.J. 383, 412 (2009) (alterations in original)

(quoting Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)). The

right to confront witnesses "does not assure that cross-examination

will be successful." Cabbell, 207 N.J. at 337 (holding that

although a witness's feigned lack of recollection may sharply limit

27 A-5389-15T2

or nullify the value of cross-examination those limitations do not

rise to the level of violating a defendant's right to

confrontation). "It is sufficient that the defendant has the

opportunity to bring out such matters as the witness's bias, his

lack of care and attentiveness, his poor eyesight, and even . . .

the very fact that he has a bad memory." United States v. Owens,

484 U.S. 554, 559 (1988).

N.J.R.E. 803(c)(5), entitled "recorded recollection," allows

for the admission, despite the hearsay rule, of a

statement concerning a matter about which the

witness is unable to testify fully and

accurately because of insufficient present

recollection if the statement is contained in

a writing or other record which (A) was made

at a time when the fact recorded actually

occurred or was fresh in the memory of the

witness, and (B) was made by the witness or

under the witness' direction or by some other

person for the purpose of recording the

statement at the time it was made, and (C) the

statement concerns a matter of which the

witness had knowledge when it was made, unless

the circumstances indicate that the statement

is not trustworthy; provided that when the

witness does not remember part or all of the

contents of a writing, the portion the witness

does not remember may be read into evidence

but shall not be introduced as an exhibit over

objection.

The trial court's determination that Jonathan genuinely could

not recall the events of July 26, 2012, is well supported by the

record. It is undisputed that Jonathan has a medical condition,

28 A-5389-15T2

recognized by the federal government as a disability, that affects

his long-term memory. The trial court, having had an opportunity

to observe Jonathan and measure his credibility, determined that

he sincerely could not recall the shooting, or his subsequent

interview by detectives at the police station. The court's

determination that Jonathan's statement to police could be read to

the jury pursuant to N.J.R.E. 803(c)(5) was sound.

In addition, defendant had the opportunity to cross-examine

Jonathan. Defendant's counsel explored his inability to recall

what he witnessed on July 26, 2012, or the circumstances of his

interview by detectives after the shooting. Those areas of inquiry

provided defendant with a basis to challenge the reliability of

Jonathan's identification of defendant as the shooter, and allowed

the jury to weigh the value of Jonathan's statement. Defendant

suffered no constitutional deprivation.

6. Sanitization of Defendant's Prior

Convictions at the Certain-Persons Trial.

Defendant argues that the trial court erred by not sanitizing

his prior felony convictions at the bifurcated trial on the

certain-persons charge. We disagree.

Under N.J.S.A. 2C:39-7(b)(1), a person who has previously been

convicted of a specified offense who purchases, owns, possesses,

or controls a weapon, has committed a second-degree offense. In

29 A-5389-15T2

order to convict a defendant of this offense, the State must prove

beyond a reasonable doubt a prior conviction of at least one

statutorily defined predicate offense. Admission of evidence of a

conviction of a prior offense creates a potential for prejudice.

Where a defendant stipulates to having been convicted of a

predicate offense, "[t]he most the jury needs to know is that the

conviction admitted by the defendant falls within the class of

crimes that . . . bar a convict from possessing a gun . . . ."

State v. Brown, 180 N.J. 572, 584 (2004) (quoting Old Chief v.

United States, 519 U.S. 172, 190-91 (1997)). However, as the

Supreme Court recently explained,

[w]hen a defendant declines to stipulate to a

predicate offense, the State is put to its

proofs. The trial court's role in such cases

is to take steps to "sanitize" the State's

evidence to avoid jury prejudice while the

State attempts to prove the elements of the

certain persons statute to that defendant.

[State v. Bailey, 231 N.J. 474, 477 (2018).]

Before the holding in Bailey, the controlling practice was

that in the absence of a stipulation, the trial court would limit

the proof to the date and the degree of the predicate offense.

Brown, 180 N.J. at 585; Model Jury Charges (Criminal), "Certain

Persons Not to Have Any Weapons, N.J.S.A. 2C:39-7(b)(1)" 1 n4 (rev.

June 13, 2005). This approach was overturned in Bailey.

30 A-5389-15T2

In that case, the defendant was charged with several offenses

arising from an armed robbery, including unlawful possession of a

weapon, possession of a weapon for an unlawful purpose, and a

certain-persons offense, based on the defendant's prior convictions

of predicate offenses. Bailey, 231 N.J. at 474. The trial was

bifurcated, with all charges other than the certain-persons offense

being presented to the jury. After the jury convicted the defendant

of all charges in the first trial, the certain-persons offense was

tried before the same jury. Id. at 478-79.

The defendant would not stipulate to the predicate

convictions. As a result, the parties agreed that evidence of his

prior convictions would be redacted except for the dates and the

degree of the offenses. Id. at 479. After the jury convicted him

of the certain-persons offense, the defendant appealed. He argued

that the State failed to prove every element of the offense because

it offered evidence only that he was convicted of third-degree

offenses, and not of third-degree offenses specified as predicate

offenses in N.J.S.A. 2C:39-7(a). We affirmed. Id. at 480.

The Supreme Court reversed, holding that the "over-

sanitization called for in the model charge injects a

constitutional defect into any trial on a certain-persons offense

where a defendant declines to stipulate." Id. at 488. This

approach "prevents a jury from finding beyond a reasonable doubt a

31 A-5389-15T2

required element of the certain-persons offense – a clear

constitutional infirmity." Id. at 489. To remedy this situation,

the court held that "[w]hen a defendant refuses to stipulate to a

predicate offense under the certain persons statute, the State

shall produce evidence of the predicate offense: the judgment of

conviction with the unredacted nature of the offense, the degree

of offense, and the date of conviction." Id. at 490-91.

Here, defendant was convicted of two prior drug offenses that

qualified as predicate offenses under N.J.S.A. 2C:39-7(a). He did

not stipulate to having been convicted of predicate offenses. As

a result, the State entered into evidence two certified judgments

of conviction. The judgments demonstrated that defendant had been

convicted of distribution of cocaine, and possession of a

controlled, dangerous substance with intent to distribute.

During the jury charge conference which took place before the

trial commenced, defendant requested that the two convictions be

referred to only as “predicate offenses," rather than by name. The

State did not object to this characterization of defendant's

convictions. The trial court agreed to defendant's request. It

is clear, however, that this agreement was based on defendant

entering into a stipulation regarding his prior convictions.

Before the trial commenced, however, defendant's counsel informed

the court that defendant would not enter into a stipulation. The

32 A-5389-15T2

court responded by stating that the previously agreed upon jury

instructions would have to be revised.

In the absence of defendant's stipulation, the State was

compelled to call a witness to secure the admission of two judgments

of conviction. As is required by the holding in Bailey, the witness

discussed the nature of the offenses. That information was

necessary for the jury to make a determination of whether the State

had established an element of the certain-persons charge.

Naturally, the State discussed this evidence in its opening

statement, as did the trial court when instructing the jury on its

need to determine if a predicate offense had been proven beyond a

reasonable doubt. Had defendant genuinely believed that he had

stipulated to his prior convictions, as he argues in written

submissions to this court, his counsel surely would have questioned

the need for the jury to hear any testimony or see any evidence

regarding the prior convictions, apart from the fact that they had

been stipulated to by the parties.

7. The Police Officer's Testimony

Regarding the Motel Surveillance Video.

In his pro se brief, defendant, for the first time on appeal,

argues that it was impermissible for the police officer who viewed

the motel surveillance video to have identified defendant as the

man who entered the motel lobby several hours after the shooting.

33 A-5389-15T2

Defendant argues that the officer lacked personal knowledge of

defendant's appearance, rendering his testimony baseless opinion.

N.J.R.E. 701 provides that “[i]f a witness is not testifying

as an expert, the witness' testimony in the form of opinions or

inferences may be admitted if it (a) is rationally based on the

perception of the witness and (b) will assist in understanding the

witness' testimony or in determining a fact in issue.” This rule

permits an officer "to set forth what he or she perceived through

one or more of the senses . . . [such as] what the officer did and

saw . . . .” State v. McLean, 205 N.J. 438, 460 (2011).

We examine the record for plain error. The officer gave a

factual recitation of what he observed on the video. He did not

identify defendant as the shooter. He, instead, provided factual

testimony regarding what he observed, and his lay opinion that the

person in the video resembled a composite sketch. The testimony

was related to the officer's observations and helpful to explain

the investigation that followed the shooting.

8. The Investigator's Notes.

Defendant argues that the State violated its post-indictment

discovery obligations because an investigator destroyed his

contemporaneous investigation notes. We disagree.

"Except for good cause shown, the prosecutor's discovery for

each defendant named in the indictment shall be delivered to the

34 A-5389-15T2

criminal division manager's office, or shall be available through

the prosecutor's office, upon the return or unsealing of the

indictment." R. 3:13-3. "Once an indictment has issued, a

defendant has a right to automatic and broad discovery of the

evidence the State has gathered in support of its charges." State

v. Scoles, 214 N.J. 236, 252-53 (2013).

"[L]aw enforcement officers may not destroy contemporaneous

notes of interviews and observations at the scene of a crime after

producing their final reports." State v. W.B., 205 N.J. 588, 607

(2011) (citing State v. Branch, 182 N.J. 338, 367 n10 (2005)). At

trial, Detective Petroski testified that he drafted his police

report, constituting his contemporaneous notes, in Microsoft Word

before copying and pasting the report into an electronic reporting

system. He thereafter deleted the original Word document. The

electronic report, which was supplied to the defense, contained

all of the detective's contemporaneous notes. The State,

therefore, complied with Rule 3:13-3.

9. Defendant's Sentence.

Defendant contends that the trial court improperly relied on

his prior convictions to both justify its decision to impose an

extended term, and to find aggravating factors at sentencing.

"The court may, upon application of the prosecuting attorney,

sentence a person who has been convicted of a crime of the first,

35 A-5389-15T2

second or third degree to an extended term of imprisonment if it

finds one or more of the grounds specified in" N.J.S.A. 2C:44-3.

An extended sentence is permitted if "[t]he defendant has been

convicted of a crime of the first, second or third degree and is a

persistent offender." N.J.S.A. 2C:44-3(a). A “persistent

offender” is a person (1) who committed his present crime when he

was at least 21 years old, (2) who has been previously convicted

of two crimes on at least two separate occasions, (3) committed at

different times, (4) when he was at least 18 years old, and (5)

the latest in time of these two crimes or the date of defendant’s

last release from confinement, whichever is later, is within ten

years of the date of defendant’s present crime. Ibid.

In State v. Dunbar, 108 N.J. 80 (1987), the Court established

a multi-step process for imposing an extended sentence.

First, the sentencing court must determine

whether the minimum statutory predicates for

subjecting the defendant to an extended term

have been met. Second, the court must

determine whether to impose an extended

sentence. Third, it must weigh the

aggravating and mitigating circumstances to

determine the base term of the extended

sentence. Finally, it must determine whether

to impose a period of parole ineligibility.

[Id. at 89.]

Once a court finds the statutory requirements have been met, it

may sentence the defendant to a term between the minimum of the

36 A-5389-15T2

ordinary-term range and the maximum of the extended-term range.

State v. Pierce, 188 N.J. 155, 169 (2006).

The judge found that defendant committed the present first-

degree attempted murder when he was thirty-eight. Although

defendant had at least eleven prior felony convictions, the trial

court found him to be extended-term eligible based on three

predicate crimes, only two of which, third-degree escape, and

third-degree possession with intent to distribute a controlled

dangerous substance, both when he was at least 18 years old, are

necessary to justify an extended sentence. The latest in time of

these convictions and defendant's last release from confinement

were within ten years of the present offense.

The court considered defendant's eight other convictions in

determining the sentencing range. A court may consider "other

aspects of defendant's [prior] record, which are not among the

minimal conditions for determining persistent offender status

. . . will be relevant factors in adjudicating the base extended

term." Dunbar, 108 N.J. at 92. The trial court gave appropriate

weight to defendant's history of criminal activity at sentencing.

Defendant also states that the trial court failed to engage

in a proper analysis when imposing a consecutive sentence on the

certain-persons conviction. He argues that the certain-persons

37 A-5389-15T2

offense was not predominantly independent of the substantive

offenses because they occurred at the same time and place.

"[I]n fashioning consecutive or concurrent sentences under

the Code, sentencing courts should be guided by the Code's

paramount sentencing goals that punishment fit the crime, not the

criminal, and that there be a predictable degree of uniformity in

sentencing." State v. Yarbough, 100 N.J. 627, 630 (1985).

In Yarbough, the Court adopted six criteria to be applied

when deciding whether to impose consecutive sentences:

(1) there can be no free crimes in a system

for which the punishment shall fit the crime;

(2) the reasons for imposing either a

consecutive or concurrent sentence should be

separately stated in the sentencing decision;

(3) some reasons to be considered by the

sentencing court should include facts relating

to the crimes, including whether or not:

(a) the crimes and their

objectives were predominantly

independent of each other;

(b) the crimes involved separate

acts of violence or threats of

violence;

(c) the crimes were committed at

different times or separate places,

rather than being committed so

closely in time and place as to

indicate a single period of aberrant

behavior;

38 A-5389-15T2

(d) any of the crimes involved

multiple victims;

(e) the convictions for which the

sentences are to be imposed are

numerous;

(4) there should be no double counting of

aggravating factors;

(5) successive terms for the same offense

should not ordinarily be equal to the

punishment for the first offense; and

(6) there should be an overall outer limit

on the cumulation of consecutive sentences for

multiple offenses not to exceed the sum of the

longest terms (including an extended term, if

eligible) that could be imposed for the two

most serious offenses.4

[Id. at 643-44 (footnotes omitted).]

The Yarbrough factors “should be applied qualitatively, not

quantitatively . . . [i]t follows that a sentencing court may

impose consecutive sentences even though a majority of the Yarbough

factors support concurrent sentences." Carey, 168 N.J. 413, 427-

28 (2001). “When a sentencing court properly evaluates the

Yarbough factors in light of the record, the court’s decision will

not normally be disturbed on appeal.” State v. Miller, 205 N.J.

109, 129 (2011).

4

The sixth guideline was later superseded by statute. See State

v. Carey, 168 N.J. 413, 423 n.1 (2001).

39 A-5389-15T2

The trial court found that the Yarbough factors supported a

concurrent sentence for the unlawful possession of a weapon

conviction, and a consecutive sentence for the certain-persons

offense. The court found that the consecutive sentence was

appropriate based on the clear legislative intent to create two

distinct possessory offenses which call for separate punishments.

Therefore, the court reasoned, even though there were no additional

victims or acts of violence associated with the certain-persons

conviction, the possessory offenses targeted separate and

independent actions warranting separate punishment.

The record supports the trial court's decision. We see no

basis to disturb defendant's sentence.

10. Defendant's Remaining Arguments.

Having reviewed the record and the law in light of defendant's

remaining arguments, we conclude that these arguments are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Affirmed.

40 A-5389-15T2