State v. KingState v. King
Defendant appeals his convictions under a multiple-count indictment charging various assaultive crimes and his aggregate 15 to 30-year sentence. We conclude that, except for a modification of the sentence as to Count 11, the convictions and sentence must be affirmed.
This is the procedural background. Defendant was charged with the following: possession of a handgun without the requisite permit, contrary to
Defendant was sentenced as follows: on Counts One and Seven to two concurrent five-year terms of imprisonment; on Count Five to an extended term of 20 years imprisonment with a ten-year parole disqualifier; and on Count Eleven, to ten years imprisonment with a five-year parole disqualifier consecutive to Count Five. Counts Two, Three and Four were merged with Count Five, and Counts Nine and Ten were merged with Count Eleven. A $100 penalty to the VCCB was also imposed.
This is the factual background. On February 15, 1983 at about 9:30 a.m. Paula Palermo, branch manager of the Queen City Savings and Loan on 655 Raritan Road in Cranford, New Jersey, and Annette Marie Hergert, assistant manager, were at
Palermo then locked the bank and contacted security. Responding officers included Detective Sgt. John Hicks and F.B.I. Agent Martin Houlihan. Hicks was informed that the LTD had been found in a nearby parking lot about a half-mile from the bank. He located the vehicle and found a red dye stain on the floorboard and a burn mark on the left rear of the car. Meanwhile a pillowcase with red-dyed cash was turned in to the Cranford Police by a man named Glen Comes who found it in the middle of Raritan Road.
Officer John Lowery of the Cranford Police Department heard a radio report concerning the robbery, learned that the suspects were headed for the Garden State Parkway, a limited access freeway, and proceеded to the northbound entrance ramp at Exit 137 to set up a roadblock. When he arrived at the ramp Detective Sgt. Milton Mason had already arrived and was halting all four lanes of traffic. Mason had received information concerning a light-colored Ford with four black males
State Trooper Kornelius Vander Ploeg was also on the Parkway at this time and heard a radio repоrt concerning a yellow Ford which the suspects were driving towards the Parkway. Vander Ploeg was driving south but noticed the roadblock in the northbound lanes and joined Officer Lowery in checking cars on the right hand side of the roadblock.
About ten minutes after the procedure was initiated, a light-colored car approached Mason in the far left lane. Mason saw two black males seated in the front and, as the car got closer, he noticed at least one other male lying down on the floor in the back. The car raced through the roadblock as Mason yelled to Lowery and Vander Ploeg to “check that vehicle out.” Lowery and Vander Ploeg quickly gave chase in their respective cars and Mason followed closely behind. Vander Ploeg took the lead in the chase, which was proceeding at 70 to 80 miles per hour, but had to take evasive action to avoid a collision with another motorist and gave the lead to Lowery who was able to come within 30 feet of the Ford. Lowery observed that the occupants of the car were four black males. The man in the left rear was in his 30‘s, with facial hair, wearing a black coat with blue оveralls and bright orange gloves, and carrying a .38 caliber revolver. Later that day, Lowery identified this man as the defendant, James King.
At approximately Milepost 141, defendant completely turned around in the back of the car and faced Lowery. He reached out of the driver‘s side window and fired his revolver three times at Lowery. Shortly before reaching a toll plaza the Ford moved from the extreme left lane across three lanes of traffic and went through the far right toll lane at 70 miles per hour, followed closely by Lowery and Vander Ploeg.
Rather than climb the fence, the two officers and the trooper went through a hole which they found in the fence and entered a residential section of Newark. All three searched the area for the suspects, Lowery and Vander Ploeg together and Mason by himself. As Mason passed by 186 Hawthorne Avenue, he saw a man sweeping outside. Mason asked the man, later identified as the defendant, whether he lived there and the man responded affirmatively. The man also denied seeing anyone run by.
Mason then found Vander Ploeg and Lowery and asked Lowery for a description of defendant. When Lowery described him, Mason told Lowery about thе recent encounter and said that he thought defendant was the person at 186 Hawthorne Avenue. The three returned to that location but defendant was gone. Other officers joined the three and the hallway
At trial, defendant denied taking part in any of the described events. His wife testified that the puncture wounds on his hands resulted from shovelling snow. As noted, King was convicted of all counts but Count Eight.
I
Defendant‘s motion to dismiss the indictment on the ground that the State violated
There is no question that under the Federal Constitution a State may prosecute a defendant for conduct which was already charged in either a federal indictment or an indictment from another state because of the concept of “dual sovereignty.” U.S. v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922); Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). “The dual sovereignty doctrine is founded
However, defendant‘s point on this appeal is not one of a double-jeopardy bar under the Federal or State Constitutions but, instead, under
When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the District Court of the United States is a bar to a subsequent prosecution in this State under the following circumstances:
a. The first prosecution resulted in an acquittal or in a conviction, or in an improper termination as defined in section 2C:1-9 and the subsequent prosecution is based on the same conduct, unless (1) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil or (2) the offense for which the defendant is subsequently prosecuted is intended to prevent a substantially more serious harm or evil than the offense of which he was formerly convicted or acquitted or (3) the second offense was not consummated when the former trial began;
Of course subsection (a)(3) has no applicability to the present case, but defendant contends that subsections (a)(1) and (2) are also inappliсable. In fact, what King actually argues is that the conduct with which he was charged was a continuing course of events which was more properly the subject of a single federal indictment. What such an argument ignores is the language of
But, as Judge Beglin pointed out, the analysis need not end there.
The defendant also raises, for the first time on this appeal, a claim of prosecutorial vindictiveness which, like his
II
Prior to trial defendant requested a two-month continuance because of what he alleged was prejudicial pretrial publicity. He informed the judge that an article had appeared on the front page of The Newark Star Ledger with the headline “Pike Trooper Slain, Crash Kills Suspects.” The articlе recited details of the death of a State Trooper, allegedly killed by two black males who were killed themselves when their car crashed following a high-speed chase. Similar news accounts also appeared in the New York Post and New York Daily News. King claimed that his trial would be irreparably tainted by these stories and that it would be impossible to select a fair and impartial jury because of the publicity surrounding the other killing.
“The granting of a continuance is a matter exclusively within the province and sound discretion of the trial judge, and should not be upset unless it appears from the record that the dеfendant suffered manifest wrong or injury.” State v. Lamb, 125 N.J. Super. 209, 213 (App.Div. 1973). No such manifest wrong occurred here. Although defendant correctly asserts that at the time of the trial he was incarcerated, serving a sentence for the related federal conviction, and was not a danger to the community, defendant‘s concerns are not the only ones which the judge must consider in this situation. The prosecutor argued that if the trial were postponed he would have difficulty re-arranging schedules for witnesses who were traveling from Washington, D.C. Also, most importantly, as Judge Wolin pointed out, the only similarity between the two cases is that а State Trooper was involved in each. Moreover, Trooper Negron had been slain as he approached a disabled vehicle on the northbound New Jersey Turnpike in East Windsor Township.
III
During testimony by Officer Lowery the State sought to admit a taped recording of Lowery‘s high speed chase along the New Jersey Turnpike. Over defense counsel‘s objections, the judge ruled the tape admissible so that the jury would “have insight as to the atmosphere and the conditions that were prevailing at the time of the chase engaged in by Officer Lowеry.” Defendant now contends that both Evid.R. 4 and 20 prohibit this evidence from being admitted.
No hearing under State v. Driver, 38 N.J. 255, 287 (1962), on conditions of admissibility was held, but it is undisputed that Driver hearings may be waived. State v. Rockholt, 186 N.J. Super. 539, 547 (App.Div. 1982). As the State points out in its brief, “In this case, defense counsel did not request a hearing because the tape recording obviously met the requirements of State v. Driver“.
We address defendant‘s contention that the admission of the recording violated the prohibition of Evid.R. 20 that “a prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express charge or implied charge against him of recent fabrication.” Defendant, of
Although not admissible to bolster Lowery‘s credibility, the tape was properly admitted as independent evidence of what was going on during the chase. It was an accurate, though dramatic, reproduction of the criminal episode which corroborated the State‘s testimonial version. It appears merely fortuitous that Lowery was both the person on the stand and the person on the tape; therefore Evid.R. 20 seems inapplicable. We note, however, that the judge‘s comment that the tape was “being played for the purpose not to corroborate the testimony of Officer Lowery but to show the atmosphere as it was occurring at the time so that they [the jury] can gauge the credibility of Officer Lowery,” (emphasis added) was not made in the presence of the jury. Fortunately, by the time he gave his jury instruction concerning the tape the judge had properly thought through the matter and restricted the admissibility of the tape to use as independent evidence to allow insight into the “atmosphere” of the car chase. This use is analogous to a movie of a criminal episode, which would certainly be admissible despite the presence of witnesses in the film itself. The witnesses’ presence would be merely a coincidence and not a
Finally we address the admissibility of the tape under Evid.R. 4. Once again, the previously cited out-of-state cases seem persuasive that this is highly probative evidence which ordinarily should be admissible. In fact, any argument by the defendant concerning actual prejudice is unpersuasive. He is really arguing that the tape is of little use to the jury since, no matter how authentic, it deals with a shooting in which he was not involved. This, however, is a weight of the evidence issue left more properly to the jury.
IV
Without any objection from defendant, F.B.I. agent Mark Babyak, an expert in forensic serology, testified as to certain isoenzyme tests which were performed on blood found on overalls and gloves which were discovered at 186 Hawthorne Avenue where defendant allegedly had been seen sweeping. Defendant now contends that Judge Wolin erred by not excluding this evidence because of its highly prejudicial and unreliable nature. However, this objection is without merit, even disregarding defendant King‘s failure to object below.
Expert testimony is admissible if (1) the intended testimony concerns “a subject matter that is beyond the ken of the average juror,” (2) the field in question is “at a state of the art such that an expert‘s testimony could be sufficiently reliable,” and (3) the witness has “sufficient expertise to offer the intended testimony.” State v. Kelly, 97 N.J. 178 (1984); Evid.R. 56. Only (2) is at issue here since isoenzyme testing is obviously beyond the “ken” of an average juror and defendant does not contend that Babyak was unqualified to be an expert — only that the process itself was too unreliable to allow the results to be relied upon.
We disagree. The same isoenzyme test was considered reliable in State v. Pearson, 234 Kan. 906, 678 P.2d 605, 609-611, 618 (1984). There the expert seriologist testified that, based upon studies showing the percentage of the population
The isoenzyme procedure itself is commonly referred to as the Multi-System analysis and tests for six еnzyme systems (EAP, AK, ADA, PGM, EsD AND GLO-1). The results are then compared to the general population (in this case the general black population) and a figure is arrived at which represents the percentage of the population which has this particular enzyme. From this record, Babyak appears to know what he was talking about and his description of the procedure suggest that the test is much more scientifically valid, than the use of hypnosis to refresh the recollection of a witness, a technique rejected by the Supreme Court in State v. Hurd, 86 N.J. 525 (1981), because the procedure is too susceptible to suggestibility and tampering. Hurd makes it clear that the trial judge‘s decision should stand unless unsupported by credible evidence. There is certainly as much evidence here as there was to support the admission of H.L.A. blood test results in Malvasi v. Malvasi, 167 N.J. Super. 513 (Ch.Div. 1979). H.L.A. testing is now aproved in many states. All of these procedures are susceptible
King seems to feel that, because this evidence is of high probative value to the State‘s case, it must also be found to be highly prejudicial, but all damaging evidence is prejudicial. The prejudice merely must not be “undue” and must not substantially outweigh the probative value of the evidence. Here the probative value is high and the prejudicial value is no more than can be expected from any damaging scientific evidence.
V
Defеndant contended before trial and also argues on appeal that he was denied effective assistance of counsel because his attorney “refused to file motions ... interview my witnesses ... [and] petition the federal government for documents that are relevant to this case.” Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987), a two-part test must be met to support any claim of ineffectiveness of counsel. First, the defendant must show a clear deficiency or mistake by counsel and then he must demonstrate that the error was so serious that a different result would have occurred at trial but for the deficient performance by counsel. This is a meritless issue.
King‘s attorney testified at the hearing on his competency in the Law Division that he had adequately prepared for trial. After hearing testimony that the attorney went so far as to interview toll collectors on the Garden State Parkway and consulted with the prosecutor and reviewed the discovery to make sure he had everything he was entitled to, Judge Wolin
VI
Defendant next contends that his aggregate 30-year sentence with a 15-year mandatory minimum was excessive.
Defendant has prior in-state and out-of-state convictions for armed robbery as well as a conviction on the underlying robbery charge in this case. This fact led Judge Wolin to conclude that “Mr. King impresses me as a gentleman who prefers to make his livelihood as a professional criminal, as a professional robber.” He found that the aggravating factors in the case were: there is a risk that King will commit another offense; the extent of his prior record; the fact that the crime was committed against a law enforcement official; and, finally, the need for deterring King and others from violating the law. The judge found that these four aggravating circumstances substantially outweighed the sole mitigating factor, that imprisoning defendant would place an extreme hardship on him and his family. Certainly all of these findings are supported by substantial credible evidence in the record and, thus,
However, the imposition of a consecutive prison term on Count Eleven conflicts with applicable sentencing law. Although decided after defendant was sentenced, State v. Yarbough, 100 N.J. 627, 644 (1985), provides guidance as to the relevant considerations which must be made before imposing a consecutive sentence:
(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; (d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
Although we make no claim as to the retroactivity of Yarbough‘s requirement that the judge specifically list his reasons for imposing a consecutive term, the factors which Yarbough enumerates for considering whether a consecutive term is appropriate have long been valid sentencing considerations in New Jersey. They are pertinent here. The same gunshots were used to prosecute both counts of attempted murder and concurrent rather than consecutive sentences thus are more appropriate. The imposition of maximum sentences seem appropriate considering that defendant‘s crimes were particularly heinous since the shoot-out and chase occurred in highway traffic and could have endangered the lives of more than just the two officers. However, the consecutive terms for attempted murder to us clash with Yarbough‘s general guidelines. This is especially true bеcause the aggregate 15-year mandatory-minimum to 30-year-maximum term was imposed consecutively to his 30-year federal sentence for the bank robbery, which defendant is currently serving at Fort Leavenworth federal prison. We therefore direct that the ten-year sentence with a five-year minimum on Count Eleven for attempted murder of State Trooper Kornelius Vander Ploeg be imposed concurrently to the extended 20-year term with ten-year mandatory minimum on Count Five for attempted murder of Officer John Lowery.
In conclusion, we find defendant‘s contentions of error in the admission of the in-court and out-of-court identifications to be clearly without merit. R. 2:11-3(e)(2).
The judgment of conviction and the sentence, as modified on Count Eleven, are affirmed.