STATE OF NEW JERSEY v. ZAIRE EVANS

 
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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3398-03T43398-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZAIRE EVANS,

Defendant-Appellant.

_______________________________________

 

Submitted December 7, 2005 - Decided

Before Judges Conley, Winkelstein and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment no. 1288-04-02.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, of counsel and on the brief).

Vincent P. Sarubbi, Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser included offense of first-degree murder; first degree felony murder, N.J.S.A. 2C:11-3a(3); second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. Following these verdicts, the jury heard evidence relating to an additional charge of second-degree possession of a weapon by certain persons not permitted to have weapons, N.J.S.A. 2C:39-7b, and convicted defendant of that as well. An aggregate term of fifty years with a thirty-five year disqualifier was imposed along with the necessary fines and penalties.

On appeal, defendant contends:

POINT I: DEFENDANT'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED, AS THEY WERE INVOLUNTARY AND TAKEN IN VIOLATION OF HIS RIGHT TO COUNSEL.

POINT II: OTHER CRIMES EVIDENCE WAS INCORRECTLY RULED ADMISSIBLE.

POINT III: DEFENDANT'S PRIOR CONVICTION WAS INCORRECTLY RULED ADMISSIBLE.

POINT IV: THE COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THE FELONY MURDER CHARGE AND SENTENCED DEFENDANT ON HIS AGGRAVATED MANSLAUGHTER CONVICTION.

POINT V: THE CODE'S SENTENCING PROVISIONS WHICH PROVIDE FOR TERMS IN EXCESS OF THE PRESUMPTIVE SENTENCE OF AN OFFENSE, FOR DISCRETIONARY PAROLE DISQUALIFIERS, AND FOR CONSECUTIVE SENTENCES ARE UNCONSTITUTIONAL, BECAUSE THEY ASSIGN TO JUDGES THE TASK OF FINDING AGGRAVATING FACTORS UNDER THE PREPONDERANCE-OF-THE EVIDENCE STANDARD IN ORDER TO IMPOSE A SENTENCE HIGHER THAN THE ONE AUTHORIZED SOLELY BY THE JURY'S VERDICT.

A. N.J.S.A. 2C:44-1f(1) IS UNCONSITU-TIONAL BECAUSE IT MANDATES IMPOSITION OF A PRESUMPTIVE TERM BUT PERMITS JUDGES TO IMPOSE A HIGHER SENTENCE BASED ON JUDICIAL FACT-FINDING UNDER THE PREPONDERANCE OF THE EVIDENCE BURDEN OF PROOF.

1. THE PRESUMPTIVE SENTENCE SPECIFIED IN N.J.S.A. 2C:44-1f(1) IS THE ONLY ONE AUTHORIZED BY A JURY'S VERDICT.

2. THE LEGISLATURE CLEARLY INTENDED JUDGES TO FIND, BY A PREPONDERANCE OF THE EVIDENCE, THE STATUTORY AGGRAVATING FACTORS THAT RESULT IN A SENTENCE HIGHER THAN THE PRESUMPTIVE TERM.

3. THE STATE MAY NOT SIMPLY IGNORE BLAKELY'S CRITICAL HOLDING BY FOCUSING ON THE MAXIMUM PUNISHMENT AVAILABLE AFTER ADDITIONAL FACT-FINDING.

4. STATE V. ABDUALLAH'S DICTA DOES NOT BIND THIS PANEL AND SHOULD NOT BE FOLLOWED.

B. N.J.S.A. 2C:43-6b IS UNCONSTITU-TIONAL BECAUSE IT PERMITS A COURT TO IMPOSE A PERIOD OF PAROLE INELIGIBILITY NOT AUTHORIZED BY THE VERDICT ALONE BASED ON JUDGE-MADE FINDINGS.

C. N.J.S.A. 2C:44-5 IS UNCONSTI-TUTIONAL BECAUSE IT PERMITS A COURT TO IMPOSE CONSECUTIVE SENTENCES BASED ON JUDGE-MADE FINDINGS.

D. CONSEQUENCES OF THE CONSTITUTIONAL VIOLATIONS.

1. THIS COURT CANNOT REWRITE THE STATUTES TO REQUIRE JURY TRIALS ON AGGRAVATING FACTORS THAT OUR LEGISLATURE CLEARLY INTENDED JUDGES TO FIND. ONLY THE LEGISLATURE CAN REMEDY THE CONSTITUTIONAL FLAW PATENT IN THE STATUTES.

2. EVEN WERE THIS COURT INCLINED TO WRITE A JURY TRIAL REQUIREMENT INTO THE OFFENDING STATUTES, THE COURT MUST DECIDE THAT THE CONSTITUTIONAL ERROR WAS NOT HARMLESS AND THAT A REMAND WOULD NOT BE CONSTITUTIONALLY PERMISSIBLE.

POINT VI: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We have considered these contentions in light of the record and applicable law. As to defendant's sentence contentions in point V, we comment briefly as follows. Point V is addressed to the sentences imposed on the third-degree endangering an injured victim conviction and the second-degree convicted felon firearms conviction, both of which exceeded the presumptive terms, had parole disqualifiers imposed and were run consecutive to the sentence imposed on the felony murder conviction. In light of State v. Abdullah, 184 N.J. 497, 512 (2005), defendant's contention that the parole disqualifiers and consecutive terms are unconstitutional are without merit and require no further comment. However, in light of State v. Natale, 184 N.J. 458, 466, 494-95 (2005), a resentencing is required on counts six and seven. In addition, on remand the judge should reconsider the consecutive term imposed on count seven as he erroneously thought the possession involved in that conviction occurred a few days before May 4, 2001. Defendant was not so indicted or tried. The possession in that count relates solely to a May 4, 2001, shooting. The sentence is in all other respects affirmed without further comment. R. 2:11-3(e)(2). As to defendant's contentions in points III and IV, we are convinced they are of insufficient merit to warrant further opinion. R. 2:11-3(e)(2). We reject points I and II but address them as follows.

I.

The convictions arose from the killing of William Quinones (Wimo) who was shot to death on May 4, 2001, at about 11:00 p.m., on 25th and Federal Streets in Camden. An off-duty Camden City police officer was passing by at the time. He saw a Hispanic male in a white car arguing with a tall, heavy-set black male. The black male was standing by the car door and the door was open. About a minute later, the officer heard three to five shots. He could not identify the two people. At the same time and location, a fifteen-year-old, who knew defendant and Wimo, saw defendant with "Yogi," whom he also knew, and another male. He heard gunshots, looked over, and saw defendant with a gun in his hand and muzzle flashes coming from it. The gun was pointed toward Wimo who, according to the witness, was outside his car. The defendant was standing to the rear of the car. The witness heard six to nine shots.

The weapon was never recovered, but four fired shell casings, which were all stamped "9 millimeter RP Lugar," were found at the scene. After a Rule 104 hearing, the State was permitted to present evidence that a few days prior to the shooting, defendant was seen with either a 9 millimeter or .40 caliber black, nickel-plated handgun. The jury was instructed to consider the evidence for only one purpose, i.e., that defendant had had "access" to a gun prior to the May 4, 2001, shooting.

Several days after the shooting, on May 7, 2001, defendant was taken to the police station around 2 p.m. At 6:45 p.m. he was read his Miranda rights. He thereafter gave two taped statements both of which were played for the jury. In the first statement, taken shortly after he was Mirandized, defendant admitted to seeing Wimo just before the shooting. He was "kind of drunk" and "was running off at the mouth saying that he gonna get me." Defendant "got fed up with it" and he punched him in the face two or three times. Defendant claimed he then walked away. As he was walking away, he heard gunshots. Out of the corner of his eye, he could see Yogi holding a gun in his hand and shooting. In the second statement, taken at 12:12 a.m. May 8, 2001, defendant recounted an argument with Wimo, who was in his car, leading to defendant's punching him a number of times. Wimo threatened that he was "gonna get" defendant and that defendant was "gonna get" his. Defendant took this to mean that he was going to "do something to me." Defendant then continued: "I walked back around the car. I seen him reaching for something under the seat. I think it was a gun." He then asked Yogi to give him a gun, "so I pulled out the gun and I shot him."

In addition to this evidence of defendant's culpability, the State presented a "jail-house confession" through the testimony of David Douglas. In January 2003, defendant was housed in the Camden County jail, along with Douglas, who was housed in a nearby block. Douglas had known defendant for seven to eight years. He told the jury that defendant told him that he had "bitch-slapped" (backhanded) the victim and "his boy handed him the hammer and he banged him." According to Douglas, "hammer" means "gun" and "bang" means "shoot."

Defendant recounted a different version at trial and presented two exculpatory witnesses, Michael Allen, a friend of Wimo, and Jessica Plaza, the girlfriend of Joel Rivera, a friend of defendant. Allen was in the vicinity of the shooting and knew Wimo, Yogi and defendant. He saw Wimo parked on Federal Street, then saw defendant walk up to the driver's side of the car. He did not see defendant hit Wimo. He heard gunshots, which he claimed came not from defendant, but from a side street. He did not know who fired the gun.

Jessica Plaza testified that around 3:30 a.m. on May 5, 2001, she tried to reach Joel on his cell phone. She had heard there had been a shooting and she was worried about Joel because it had occurred in an area where he hung out. Yogi answered Joel's cell phone. Plaza asked him what happened and Yogi said, "[y]ou wouldn't believe what happened. You wouldn't believe what I did. I shot him. I shot him."

Defendant told the jury that he was at the scene of the crime, insisted that there was no previous bad blood between defendant and Wimo but that just prior to the shooting, Wimo had said to him: "You think you're tough," and "[s]omething's going to happen to you." At that point, defendant told Wimo to "keep my name out of his mouth." He denied being mad and admitted that he could have walked away, but he did not. Instead, he punched Wimo twice with his left hand and once with his right hand in the head and mouth while standing on the driver's side of the car, with the driver's door open. One of Wimo's legs was outside the car and the other was still in the car. Someone grabbed defendant's arm and said: "Leave him alone, his mouth is bleeding." Then he heard gunshots and heard someone say: "Get away from the car." He saw Yogi with a gun.

II.

In point I, defendant contends that his police statements should have been suppressed because they were involuntary and in violation of his right to counsel. After an extended pretrial Miranda hearing, at which the principal officers, Lieutenant Folks and Detectives Tunstall and Falco, testified, as did defendant, the motion judge's credibility assessments, findings of facts and conclusions of law included the following:

I certainly found Detective Kevin Tunstall a very credible witness, I found detective - strike that - Lieutenant Folks a very credible witness, I found Detective Falco moderately credible. I had some difficulty with the credibility of the defendant noting not only his criminal record but also obviously he has, as everyone else has, a bias in this particular case. He's attempting to avoid further incarceration. The question - and there are inconsistencies that I'll talk about, especially in light of what he had told me in C-1,[] what he said here from the stand because when he sent me C-1, he was talking to me about his Miranda rights. I certainly never encourage anybody to write me a letter. In fact, I would prefer them not to write me a letter because it could damage themselves. That's certainly a voluntary statement he made. Nobody asked him to send that statement to me.

Now what happens in this particular case, I'm satisfied the testimony is as follows, a summary of the testimony, and my determinations as to what transpired.

. . . .

[T]he stop was on the 7th of May and the majority of the activity occurred on the 7th of May going into the morning hours of the 8th of May but the defendant was placed in an interrogation room at approximately 2 p.m. on that particular day and pretty much nothing went on from roughly 2 p.m. to as I said 6:45 p.m. I do find consistent with the testimony, as well as C-1, what the defendant wrote to me, that throughout the course of the events, I'll tell you what I find to be consistent, that the defendant did go to the bathroom. He urinated. How he urinated, whether it's the version given to me by the defendant or given to me by Detective Falco, in one instance the defendant says he urinated in a holding cell, Detective Falco said he urinated in an area outside the juvenile bureau, it's not really that material but the fact of the matter was he was allowed to relieve himself. . . . He ate. There's no question about that. He drank. There's no question about that. Again, taking the totality of the evidence, including C-1 which is a statement made by defendant, he slept.

. . . .

[G]oing back to the methodology by which the statement was taken at approximately 6:45, according to the totality of the evidence and the totality in this instance being Tunstall's statements, Falco's statement and also S-3 which seems to corroborate what Tunstall and Falco said, the defendant was in fact given his Miranda warnings for what I'll call and what the prosecutor's office's and police call a pretape[d] interview. The document was dated and time marked on the document and the defendant was at that point in time I find beyond a reasonable doubt read his Miranda right.

. . . .

I do find the defendant beyond a reasonable doubt was given his Miranda warnings at 6:45, prestatement, pretaped interview . . . and then a half hour later the tape machine was turned on and he gave the statement as contained again in the first statement that took place at 7:18 which I believe to be S-4, the transcript of which is S-5 and in that statement again you can hear the defendant given the Miranda warnings.

Now, granted, that the Miranda warnings were read to the defendant in a fast manner and I think even I described it as a shotgun type of manner by Falco but [I] would note that defendant [had] testified that he does have a certain education level, the document was placed in front of him, he was able to read it, it was executed by him, he answered yes to every question. Never said what or huh or that he didn't understand what was said or asked for anything to be repeated and I heard it, although it was spoken quickly, I heard it, it was clear enough to hear it, it was clear enough to understand it, and I find that was the second time he was read his Miranda rights and acknowledged that they were read to him on tape. And also there's some notation would you sign it. Page two of S-5, there are unnumbered lines. All right. Do you acknowledge all this information has been read and explained to me as understanding and comply? And the answer was yes. Okay. Sign there, please. Okay. State your full name for the record, and then the defendant begins to answer questions. As in S-5 and S-4 which was the tape and S-6 which was the second tape, the next morning, early morning hours, approximately 12:12 a.m. on May the 8th of 2001, questions were put to the defendant, primarily by Falco with some intervention and questions by Tunstall being put forth to the defendant and it's important to note that I listened carefully to the voice of the defendant on the audiotape in both of the statements and the voice that I heard is not one that would be indicative of being placed under undue stress, indicative of someone who was crying, indicative of someone that had a hard time breathing. The answers to all the questions that were put forth to him were not rushed in his responses, his responses appeared to be deliberate, they were responsive answers to the question, even the tone of his voice was calm and matter of fact and did not indicate that he was subject to any stress. Lots of times I tell jurors to listen very carefully to how someone says it, what body language. Now, unfortunately, I don't have the benefit of a videotape but I have to listen carefully to see what inflections are used, whether hesitations are put forth on the tape, whether again there's any evidence of crying or upset or stress or strain. I have to listen carefully to the interrogator's voice to see whether or not there's any coercion in the voice. I found none of those adverse aspects that would belie the voluntariness of the statement. He testified as to the important aspects of the questioning, how things went down on that particular day in a narrative style as opposed to answering leading questions, yes or no. He did this with respect to both of the tapes.

Concededly, I have to tell you there was a small difference in his energy level between the first tape and the second tape. He seemed somewhat tired, at least the way his responses were, the volume of his voice in the second tape as opposed to the first tape but I also note as I noted previously he had in fact slept during a portion of the evening. There was a large part of the evening that went when he had no contact with police. He wasn't subject to a 10 hour interrogation. He was subject to approximately a two to two and a half hour involvement with the police and I do find the testimony by law enforcement officers concerning the amount of actual time spent with the defendant beyond a reasonable doubt, I don't think there's anything the defendant said in his statement that would indicate that that was an incorrect evaluation. I do find with respect to the second tape that although not being reread the Miranda rights, and he wasn't required to have the Miranda rights reread to him as they had been read to him twice, given to him once, simultaneously with a reading at 6:45 in a written form, recitation on May the 8th at 12:12 asking about reiterating you gave a taped statement, you gave us biographical data and so forth, you were read your rights and you signed your rights card. Yes was the answer so he acknowledges that he understood that the rules of the game were still that Miranda applied, continued to answer questions in the manner I had previously found.

What was interesting about the testimony of the defendant is again there were some inconsistencies in what he said in his C-1 as to what he said on the stand. The most glaring problem that I saw, he was making it clear to me in C-1, anyone who reads the letter would clearly see that he was advancing Miranda arguments in there. What is conspicuously missing was the striking of his leg five times by Lieutenant, then Sergeant[,] Folks and he said if it were a skinnier guy it would have hurt. It was with such force in his view [that] had he not been in the setting of a police station [, it] would have caused him to get into a fight, and although not maybe the force of the banging on the witness stand that Mr. Conley engaged in, it was certainly something that I believe that the defendant found to be irritating and aggressive in nature. He left that out of C-1. He talks to me about urinating in his pants and being tired and eating food and wanting to call his mom and wanting to call his family lawyer but the most egregious conduct would have been the striking and its omission speaks very loudly about the value of his testimony and the credibility that he should be given.

Also, he tends to exaggerate in his testimony. He talks about the number of witnesses. He heard between the first statement and the second statement that there were a number of witnesses identifying him as the shooter and he made clear to me in this letter there were five witnesses and now he's almost doubled the number on the stand. It went up to nine witnesses. There's an inconsistency in the characterization of the sleep he engaged in between the two letters so there is some discrepancies. That's always the problem when somebody writes you a letter that produces evidence that can be used by anyone, used by the trier of fact because I want to know whether he's telling the truth or not and I find there are glaring credibility problems between C-1 and his testimony. But the most telling response to any questions asked was a response to what I think was the last question put to the defendant by Mr. Conley on cross-examination. So why did you change your story from the first tape to the second tape? And the response that the defendant is he doesn't know why he didn't stick with his story. He could have easily said because I was beaten, because I was coerced, because I was there for 10 hours, because they didn't let me pee, everything he wrote me, he could have said that's why I changed my story. He didn't change his story, didn't have an explanation for changing his story.

I find beyond a reasonable doubt that the Miranda rights were given to him on two separate occasions, one of which was given to him simultaneously with giving him the written notice, that he, by the way, was cooperative throughout with the police, that his motivation to avoid jail is clearly indicated by his initial inclination when the officer stopped him, he didn't want to make trouble because he was afraid of going back to state prison. That's the inference that was given by his testimony because he was on parole and he was cooperative and he remained cooperative throughout the investigation, throughout the statement. His statement was in fact given freely, knowingly, and voluntarily, not as a result of any coercion or outside influences that would affect his ability to think or reason or understand the nature or the consequences of what he was doing on that particular day.

The voluntariness of a statement "is a legal question requiring an independent appellate determination." State v. Pillar, 359 N.J. Super. 249, 268 (App. Div.), certif. denied, 177 N.J. 572 (2003). However, we are "obliged to defer to the trial judge's credibility determination to the extent that it was grounded in the court's opportunity to observe the character and demeanor of the witnesses . . . ." State v. Sheika, 337 N.J. Super. 228, 238 (App. Div.), certif. denied, 169 N.J. 609 (2001). See State v. Locurto, 157 N.J. 463, 474 (1999).

The privilege against self-incrimination "is one of the most important protections of the criminal law." State v. Presha, 163 N.J. 304, 312 (2000). It is derived from the Fifth Amendment of the United States Constitution and our common law. Ibid.; State v. Patton, 362 N.J. Super. 16, 41 (App. Div.), certif. denied, 178 N.J. 35 (2003). Although a suspect is always free to waive the privilege and confess, that waiver can never be a product of police coercion. State v. Presha, supra, 163 N.J. at 313.

It is the State's burden to prove voluntariness beyond a reasonable doubt. State v. Cook, 179 N.J. 533, 562 (2004); State v. Galloway, 133 N.J. 631, 654 (1993). The controlling test for determining voluntariness is "whether, under the totality of circumstances, the confession is 'the product of an essentially free and unconstrained choice by its maker' or whether 'his will has been overborne and his capacity for self-determination critically impaired.'" State v. Pillar, supra, 359 N.J. Super. at 271 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2046-47, 36 L. Ed. 2d 854, 862 (1973)). See State v. Knight, 183 N.J. 449, 461-62 (2005). The court must consider the defendant's characteristics and the nature of the interrogation. State v. Galloway, supra, 133 N.J. at 654. Factors to take into account include "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." Ibid. The court should also consider any "previous encounters with law enforcement . . . ." State v. Knight, supra, 183 N.J. at 463.

"Cases holding that police conduct had overborne the will of the defendant have typically required a showing of very substantial psychological pressure on the defendant." State v. Galloway, supra, 133 N.J. at 656. However, a confession extracted by physical violence during an interrogation has been considered per se involuntary. Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986). See also State v. Chippero, 164 N.J. 342, 358 (2000) ("[T]he presence of physical abuse militates in favor of exclusion of a confession."); State v. Hickman, 335 N.J. Super. 623, 632 (App. Div. 2000) ("[A] confession extracted by a credible threat of physical violence is considered involuntary and thus violative of due process."). See State v. Petrolia, 21 N.J. 453, 459 (1956).

On appeal, defendant repeats his claims of "highly coercive" interrogation techniques which caused him to admit to the shooting. In this respect, he claimed, among other things: he was denied the opportunity to use the bathroom; he was left in a room for hours; he was falsely told that he was not a suspect, only a witness; he was led to believe he would be released after his first statement, but instead, he was left alone for a long time; the officers "ganged up" on him, with one repeatedly striking him in the leg; the officers lied by saying they had nine witnesses who said he was the shooter; they convinced defendant that his prison sentence would be limited to seven to eight years instead of life if he confessed.

Regardless of whether any or all of these assertions, if true, would be enough to render his inculpatory statements involuntary and coerced, the motion judge placed no credence in them, accepting the credibility of the officers' contrary testimony. In particular, the judge found that defendant's claim of being repeatedly hit in the leg was false. He also noted that although defendant had been in custody for ten hours by the time the second statement was taken, he had only been questioned for about two-and-a-half of those hours. The judge noted that defendant had less energy during the second statement, but noted that he had slept and that there was no cognizable claim of exhaustion. The judge carefully listened to defendant's voice during the second statement. "[T]he tone of his voice was calm and matter of fact and did not indicate that he was subject to any stress." Inferentially, too, the motion judge rejected defendant's testimony that he had requested counsel. We find no occasion here to reach factual and legal conclusions contrary to those of the trial judge. See State v. Knight, supra, 183 N.J. at 467-68; State v. Cook, supra, 179 N.J. at 563.

We comment briefly on defendant's contention that the motion judge erred in considering his July 1, 2002, letter in making his credibility assessments. At the Miranda hearing, the judge marked the letter as a court exhibit and gave copies to both counsel. The letter was used by the prosecutor in his cross-examination. Defendant admitted writing it, sending it to the judge and stated that the letter was the truth. Although the letter was never officially offered into evidence, its use was never objected to.

Defendant contends that the letter should not have been considered by the judge because it went beyond the "four corners" of the evidence presented at the Miranda hearing. To support his claim, he cites State v. Wilson, 178 N.J. 7, 14 (2003). In Wilson, the Court stated that when faced with a determination about whether there was probable cause to issue a warrant, the court's probable cause determination must be made "'on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously.'" Ibid. (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000)). Defendant also relies on State v. Tavares, 364 N.J. Super. 496 (App. Div. 2003). There we held that on appeal from a judge's decision regarding the justification of a warrantless search, the State cannot rely on factual testimony or other proof that was not submitted as part of the lower court's record. Id. at 501-02.

Neither case is applicable. Simply put, defendant's letter here was squarely within the "four corners" of the Miranda proceedings. The issue is whether the letter was properly before the motion judge. We are convinced it was pursuant to N.J.R.E. 802(b)(1) which permits a statement to be offered if it is "the party's own statement, made either in an individual or in a representative capacity." Here, defendant acknowledged writing the letter and claimed that it was the truth. The State and defendant's own counsel had the opportunity to question defendant about it. We see no error in the motion judge's use of it.

Defendant further contends that a comparison of the letter and his Miranda hearing testimony demonstrates "essential consistency." He claims that his hearing testimony was "simply more detailed," which could "be expected because it was elicited by trained counsel." We see no error in the judge's conclusion that while parts of the letter were consistent with defendant's Miranda testimony, "most glaring" was the "conspicuous" absence of any claim that he was struck on the leg by the police. "[T]he most egregious conduct would have been the striking and its omission speaks very loudly about the value of his testimony and the credibility that he should be given." And, too, the judge noted that in the letter defendant said that the police told him that they had five witnesses against him. At the Miranda hearing, however, he testified that they told him that they had nine witnesses against him. There was also an inconsistency in his characterization of how long he slept between the two statements.

But beyond all of this, the motion judge found "most telling" defendant's response to the prosecutor's question as to why defendant changed his story. He answered that he did not know why he changed his story. "He could have easily said because I was beaten, because I was coerced, because I was there for 10 hours, because they didn't let me pee, everything he wrote me, he could have said that's why I changed my story. He didn't . . . have an explanation for changing his story."

We see no basis for interfering with the judge's credibility findings or with the ultimate conclusion that the inculpatory statement was admissible.

III.

In point II, defendant contends that the judge erred in admitting evidence that several days prior to the shooting he was seen with a gun that was similar to the description of the gun used to kill the victim. Although we have doubts as to the admission of this evidence, we think it was harmless.

N.J.R.E. 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Propensity evidence is the danger N.J.R.E. 404(b) serves to protect against. State v. Hernandez, 170 N.J. 106, 118-19 (2001). "There is widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant." State v. Stevens, 115 N.J. 289, 302 (1989). See State v. Jenkins, 178 N.J. 347, 365-69 (2004). Admissibility of such evidence requires satisfaction of a four-prong test: 1) the evidence of the other crime must be relevant to a material issue; 2) the other crime must be similar in kind and reasonably close in time to the offense charged; 3) the evidence of the other crime must be clear and convincing; and 4) the probative value must not be outweighed by the apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992). Accord State v. Bakka, 176 N.J. 533, 547 (2003); State v. Darby, 174 N.J. 509, 519 (2002); State v. Hernandez, supra, 170 N.J. at 119; State v. Marrero, 148 N.J. 469, 483 (1997). If admitted, a limiting instruction must be given the jury which "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." State v. Stevens, supra, 115 N.J. at 304. A trial judge's determination to admit such evidence "should not be upset unless 'the danger of undue prejudice . . . outweigh[s] probative value so as to divert jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. Marrero, supra, 148 N.J. at 490 (quoting State v. Moore, 122 N.J. 420, 467 (1991)).

Here, the trial judge conducted a hearing prior to trial to determine the admissibility of the other-crime evidence. That evidence was based upon a taped police statement by an "associate" of Wimo's, Orlando Millayes. In the statement, Millayes revealed that a few days before May 4, 2001, defendant had pistol whipped him with a gun similar to the gun used in the shooting. At the hearing, however, Millayes testified that he did not know defendant and did not recall the alleged incident. He did admit to signing a statement on May 9, 2001, wherein he said defendant had hit him with a gun, but said he "wanted to lie" and there was no benefit to him for making the statement. Based upon his observations of Millayes, the trial judge concluded that Millayes was "feigning lack of recollection." At trial, Millayes told the jury he saw defendant with a nine-millimeter nickel-plated handgun a few days before the shooting.

On appeal, defendant focuses upon the clear and convincing evidence and relevancy requirements of the Cofield test. As to the first, in finding there was clear and convincing evidence of the prior incident, the trial judge acknowledged that "certainly it's not proof beyond a reasonable doubt," but found Millayes's taped police statement to be credible, noting that in it Millayes gave details about the gun, the incident and the motivation without being prompted, and he identified defendant. And, too, the judge noted the absence of any coercion or other inducements. With these findings and conclusions, we are in no position to differ.

But, as to the conclusion that the incident was relevant to a material issue, we have our doubts. As to that, the judge thought: "There's a genuine dispute, since the firearm was not found, whether or not the defendant . . . did have access to a firearm of the nature which he described in his own statement. So it is certainly highly relevant to the proceeding." He charged the jury:

Ladies and gentlemen, I want to give you this instruction. The State has introduced evidence through the testimony of Orlando Millayes concerning the defendant's prior possession of a handgun.

Now normally such evidence is not permitted under our Rules of Evidence and that's because our Rules of Evidence specifically exclude evidence that a defendant has committed uncharged crimes, wrongs or acts when it's offered only to show that he has a disposition or tendency to do wrong and therefore must be guilty of the offenses charged in this case.

However, our Rules do permit evidence of uncharged crimes, wrongs or acts when the evidence is used for some other limited purpose.

In this case the testimony of Orlando Millayes about the defendant's prior possession of a handgun is not to be used by you to establish or show that the defendant also had possession of a handgun on May 4th of 2001 at the time of the alleged shooting of William Quinones.

Rather, you may only consider that testimony for the limited purpose of showing that the defendant had access to a gun. You cannot and you must not consider it for any other purposes than for the limited purpose that I've just indicated to you. And that is, that the defendant had access to a gun.

Whether this evidence does, in fact, demonstrate that the defendant had access to a handgun is for you to decide. You may decide that the evidence does not demonstrate that and is not helpful to you at all. In that case you must disregard the evidence.

On the other hand, you may decide that the evidence does demonstrate that the defendant had access to a handgun and use it only for that specific limited purpose. However, you may not use it - use this evidence to decide that the defendant had tendency to commit crimes or that he's a bad person. That is, you may not decide just because the defendant committed other crimes, wrongs or acts that he must be guilty of the present charge.

I've admitted this evidence only to help you decide the specific question of whether the defendant had access to a handgun. You may not consider it for any other purpose and you may not find the defendant guilty now simply because the Sate has offered evidence that he committed other crimes, wrongs or acts.

[Emphasis added.]

But defendant, at trial, did not deny owning a handgun or that a handgun was used to shoot Wimo or that he was not at the scene. He denied he was the shooter. Having access to a gun at some prior time has questionable relevancy to the central issue the jury was to resolve in the murder of Wimo - was it defendant or Yogi who shot Wimo? It certainly had no relevancy to the other charges, including the possessory charges. The latter is so because the possessory charges related solely to the possession of a handgun on May 4, 2001, not some few days before.

We reject the State's contention that State v. Copling, 326 N.J. Super. 417 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000), is directly on point. The victim in Copling was shot by a man wearing a foam rubber half-mask over the lower half of his face. Although there were witnesses to the shooting, no one could positively identify him because of the mask. Thus, whether the defendant had access to a gun was thought to be important in the identification issue. And, too, where there is a handgun found at the scene of a shooting, evidence of prior, recent possession of that handgun by a defendant is admissible to tie the defendant to the gun that was found at the scene of the crime. State v. Carswell, 303 N.J. Super. 462, 471 (App. Div. 1997).

Neither of these circumstances exist here. The weapon used to shoot Wimo was never found at the scene and there was no "masked" shooter. Defendant admitted to being there. His story was that he punched Wimo, but did not shoot him. Whether previously he may have had "access" to a gun would seem to be neither here nor there as it relates to the critical issue to be resolved by the jury.

In any event, even if the trial judge's discretionary ruling could be said to have been erroneous, it was harmless. First, and perhaps most importantly, the jury was told it was not to conclude defendant was the shooter from the prior act. We are to assume they followed that instruction. E.g., State v. Winter, 96 N.J. 640, 649 (1984). Second, there were two unbiased witnesses whose evidence plainly supports the verdict - the officer who drove by and saw two people arguing, one of them matching defendant's height and weight, and a minute later heard gunshots, and the fifteen-year-old who knew defendant and who saw him shoot Wimo. This, of course, is aside from the "jail-house confession" evidence. Moreover, there was defendant's own confession which the jury was more than rational in finding to be the truth.

Error is harmless unless it is "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971). The test focuses upon whether there is a real possibility, that is, one sufficient to raise a reasonable doubt, that the error led the jury to a result it otherwise might not have reached. E.g. State v. Bakka, supra, 176 N.J. at 547-48. See also State v. Winter, supra, 96 N.J. at 646 ("The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence."). Here, we are satisfied that the evidence of the prior incident did not lead the jury to a result it otherwise might not have reached.

IV.

At trial, defendant unsuccessfully sought a judgment of acquittal on the felony murder charge contending insufficient evidence to support the felony, i.e., the burglary of Wimo's car (reaching inside the car to assault Wimo). He does not raise this issue on appeal, but now argues that the State did not establish the causation elements of felony murder. Having not raised this issue before, we consider it from the perspective of plain error and conclude that no such error exists.

Under N.J.S.A. 2C:11-3a(3), felony murder occurs when:

the actor, acting either alone or with one or more persons, is engaged in the commission of, or any attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism . . . and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants . . . .

"Felony murder is an absolute-liability crime because the actor need not have contemplated or consciously risked the victim's death." State v. McClain, 263 N.J. Super. 488, 491-92 (App. Div.) (citing State v. Martin, 119 N.J. 2, 20 (1990)), certif. denied, 134 N.J. 477 (1993).

However, the State must still prove criminal causation. In this respect, N.J.S.A. 2C:2-3 provides:

a. Conduct is the cause of a result when:

(1) It is an antecedent but for which the result in question would not have occurred; and

(2) The relationship between the conduct and result satisfies any additional causal requirements imposed by the code or by the law defining the offence.

. . . .

The felony murder statute includes an additional element. In this respect, N.J.S.A. 2C:2-3e provides:

When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor's conduct.

N.J.S.A. 2C:2-3a(1) establishes but-for causation. State v. Martin, supra, 119 N.J. at 11. Under the but-for test, a "defendant's conduct is deemed a cause of the event if the event would not have occurred without that conduct." Ibid. "Conversely, a defendant's conduct is not considered a cause [of the event] if the event would have occurred without it." Ibid. It is "[t]he underlying felony or the immediate flight from the felony that must have been the but-for cause of the victim's death. . . . " State v. Pantusco, 330 N.J. Super. 424, 440 (App. Div.), certif. denied, 165 N.J. 527 (2000).

N.J.S.A. 2C:2-3(e) establishes the additional requirement that the death must have been a probable consequence of the actor's conduct during the underlying felony or immediate flight. Id. at 441. A "probable consequence" under N.J.S.A. 2C:2-3(e) is one which is not "too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the defendant's" culpability. State v. Martin, supra, 119 N.J. at 32.

Here, the jury was properly charged on the causation elements of felony murder. In this respect, the charge to the jury included the following:

In order to meet its burden of proof as to those elements, the State must prove beyond a reasonable doubt that but for the defendant's conduct in the commission or attempt to commit the burglary or while the defendant was in flight after committing or attempting to commit the burglary, the victim, William Quinones, would not have died.

In other words, that William Quinones' death would not have occurred without the commission or attempted commission of the burglary.

Also, the State must prove the victim's death, the death of William Quinones, was a probable consequence of the defendant's commission of or the defendant's attempt to commit burglary or of the defendant's flight after committing or attempting to commit the burglary.

In order for the death to be a probable consequence of the burglary or attempted burglary, the death must not have been too remote or too accidental in its occurrence or too dependent on another's volitional act to have a just bearing on the defendant's liability or the gravity of his offense.

There was sufficient evidence here to support the jury's conclusion that the but-for and probable consequences requirements were proven by the State. The shooting of Wimo occurred either during the commission of the burglary or in its immediate aftermath. While the jury did not agree that defendant acted purposely or knowingly, it did find that he acted recklessly with manifest indifference to the value of human life by convicting him of aggravated manslaughter in addition to felony murder. Thus, it is likely that the jury agreed that defendant began shooting, perhaps to scare the victim or just to further vent his rage at the victim by shooting at his car, but also agreed that that conduct was not removed from the burglary he had just committed for the purpose of inflicting bodily injury upon the victim. It is not unforeseeable that a victim might die as a result of a burglary committed for the purpose of doing the victim harm. Certainly, the jury could have reasonably concluded the shooting would not have occurred without that initial offense. And, too, "the initial crime and the murder [were] closely connected in point of time, place, and causal connection and [were] integral parts of one continuous transaction." State v. Mirault, 92 N.J. 492, 500 (1983). Thus, the shooting was neither remote nor accidental. See State v. Pantusco, supra, 330 N.J. Super. at 442-44; State v. Spencer, 319 N.J. Super. 284, 308 (App. Div. 1999); State in re J.R., 234 N.J. Super. 388, 394 (Ch. Div. 1988).

Finally, we reject defendant's contention that felony murder applies to "completely unintended killings which occur during the course of certain serious felonies." In State v. Arenas, 363 N.J. Super. 1 (App. Div. 2003), certif. denied, 178 N.J. 452 (2004), the defendant made a similar argument. We replied:

Although "a wholly unintended killing is [felony] murder if it results from the commission of the underlying [predicate] felony[,]" State v. Darby, 200 N.J. Super. 327, 331 . . . (App. Div. 1984), certif. denied, 101 N.J. 226 . . . (1985), this does not mean that a defendant cannot be found guilty of felony murder for an intended killing committed in the course of a predicate felony. It only means that the intent required to support a conviction for felony murder is the intent to commit the predicate felony. If the State's evidence shows that the defendant also intended to kill the victim, the defendant may be found guilty of both the purported murder and felony murder.

[Id. at 7-8 (citations omitted).]

V.

 
The convictions are affirmed. Counts six and seven are remanded for resentencing consistent with our opinion. The sentence in all other respects is affirmed.

Defendant has been described as being 6'4" tall and weighing over 280 pounds.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

C-1 was a letter defendant had written the judge on July 1, 2002, upon which we will shortly comment.

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34

A-3398-03T4

December 23, 2005