STATE OF NEW JERSEY, Plaintiff–Respondent, v. PIERRE A. DENEUS, a/k/a HARRY JEAN–PIERRE, Defendant–Appellant.
Following a jury trial, defendant was found guilty of second-degree kidnapping, N.J.S.A. 2C:13–1b(1), (a lesser included offense under count one of the indictment); second-degree luring, N.J.S.A. 2C:13–6, (count two); third-degree promoting prostitution, N.J.S.A. 2C:34–1b(7), (count seven); third-degree endangering the welfare of a child, N.J.S.A. 2C:24–4a, (count eight); first-degree conspiracy to commit murder, N.J.S.A. 2C:5–2 and 2C:11–3a(1), –3a(2), (count nine); second-degree witness tampering, N.J.S.A. 2C:28–5, (count ten); two counts of third-degree witness tampering, N.J.S.A. 2C:28–5, (lesser included offenses under counts eleven and twelve); and second-degree hindering apprehension or prosecution, N.J.S.A. 2C:29–3b(3), (count thirteen).
The trial judge sentenced defendant to an aggregate term of twenty-six years' incarceration, with a fifteen-year period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. After appropriately merging count two into count one, the judge sentenced defendant to five years' incarceration for second-degree kidnapping, subject to NERA (count one); three years' incarceration for third-degree promoting prostitution (count seven) and three years' incarceration for third-degree endangering the welfare of a child (count eight), concurrent with counts one and seven; ten years' incarceration for first-degree conspiracy to commit murder subject to NERA (count nine), consecutive to counts one, seven, and eight and consecutive to count thirteen; five years' incarceration for second-degree witness tampering (count ten), consecutive to all counts; three years' incarceration on each count of third-degree witness tampering (counts eleven and twelve) consecutive to all other counts; and five years' incarceration for second-degree hindering (count thirteen), concurrent with count nine.
Defendant raises the following arguments on appeal:
I. EXTENSIVE TESTIMONY THAT THE DEFENDANT AND HIS BROTHERS WERE MAJOR DRUG DEALERS AND GANG MEMBERS WAS COMPLETELY IRRELEVANT, AND THEREFORE INADMISSIBLE UNDER N.J. COURT RULE 404(b). ADMISSION OF THE TESTIMONY VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST., ART. I, PARS. 1, 9, AND 10) (Partially Raised Below).
II. SINCE THE STATE ADVANCED DIFFERENT THEORIES OF CULPABILITY FOR KIDNAPPING BASED ON DIFFERENT ACTS, THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURORS THAT TO CONVICT THEY HAD TO UNANIMOUSLY AGREE AS TO WHICH SPECIFIC CRIMINAL ACTS WERE COMMITTED. THE ABSENCE OF A UNANIMITY INSTRUCTION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST., ART. I, PARS. 1, 9, AND 10) (Not Raised Below).
III. THE DEFENDANT'S TAMPERING CONVICTIONS (A) SHOULD HAVE MERGED AND (B) WERE NOT REQUIRED TO BE SERVED CONSECUTIVELY AND (C) HAD NO PROOFS BY WHICH A SECOND DEGREE ENHANCEMENT COULD BE FOUND (Not Raised Below).
IV. THE VERDICTS WERE SHARPLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL.
Having considered these arguments in light of the record and applicable legal principles, we affirm defendant's conviction, but we remand for resentencing.
We discern the facts from the record. The State alleged that on May 30, 2008, defendant abducted a thirteen year-old girl on the street, drove her to a house, offered her money for sex, and then attempted to have sex with her. Defendant was arrested shortly thereafter and incarcerated at Essex County Jail. In November 2009, while defendant was incarcerated and awaiting trial, the State learned defendant had offered a fellow detainee $5000 to kill several witnesses, including the thirteen year-old girl, N.W., her mother, and defendant's roommate, Julienne. Additional charges therefore were brought against defendant.
At defendant's trial, the State called as witnesses Irvington Police Detective Jerry Alston, N.W., Captain Quovella Spruill and Detective John Foti of the Essex County Prosecutor's Office, B.T., former inmate at the Essex County Jail, and Domenick Pomponio, an investigator with the internal affairs bureau of the Essex County Jail. Defendant testified on his own behalf, and called as witnesses his brother, Levelt, and his friend, Abraham.
A. Kidnapping Related Charges
On the morning of May 30, 2008, sometime after 8:30 a.m., thirteen-year-old N.W. took a bus from her home in Newark, intending to travel to her school in Irvington. N.W. got off the bus on Myrtle Avenue and 18th Avenue in Irvington and began walking down Myrtle Avenue when a man, later identified as defendant, grabbed her wrist and forced her into a car. Defendant then entered the driver's seat and began driving.
Defendant asked N.W. her name and she gave him a fake name, “Nicole.” Defendant then slipped a piece of paper into N.W.'s jacket pocket, and continued driving. N.W. attempted to escape but the passenger side door handle was broken. A few minutes later, defendant stopped in front of a house, and pulled N.W. from the car. N.W. tried, unsuccessfully, to get away from the man.
According to N.W., defendant
took her up the step to the house and then [they] went in the house and [she] sat on a chair or he made [her] sit on a chair and he closed the door. And then he was telling [her] that he wanted to have sex with [her] and [she] was scared and [ ] [said] no. And then he kept telling [her][ ] he wanted to have sex with [her] And then that's when [she] [said] no and then ․ he tried to take off [her] clothes and he ripped [her] leggings, and that's when he tried to take off [her] jacket but [she] pulled it tighter.
Defendant then stood in front of her, “unzipped his pants[,]” took his penis out, began “moving his hand up and down on it[,]” and told her that he wanted to have sex with her. At some point defendant offered her fifty dollars to have sex with her, which she rejected.
Thereafter, a “lady opened the door and [N.W.] ran” from the house. N.W. headed to her father's house, but encountered her grandmother and went, instead, to her grandmother's home. Once inside, N.W. told her grandmother and her mother what occurred, and N.W.'s mother called the police.
Captain Spruill interviewed N.W., who provided the officer with the paper defendant slipped in her pocket, as well as the clothing she was wearing. On the paper was the name “Pierre” and a phone number.
Later that day, Spruill drove N.W. past the house and N.W. identified the car parked in front of the house as defendant's car, and Spruill noted the car's license plate number. Spruill later determined that the car was registered to defendant's roommate.
Further, Spruill asked N.W. to participate in a recorded phone call with defendant using the phone number defendant provided. Spruill advised N.W. to talk to the man about what happened earlier that day, and ask him if he still wanted her to come over. N.W. called “Pierre's” number and asked him if he still wanted to have sex. The man responded that he wanted to have sex with her, and told her he would give her fifty dollars. A recording of the “consensual intercept” was played for the jury.
As part of her investigation, Spruill subpoenaed the phone company to provide the subscriber information associated with the number defendant gave to N.W. Spruill received the address of the subscriber, as well as the subscriber's billing name, Harry John Pierre.
On June 3, 2008, Spruill continued her investigation by driving back to defendant's house in search of the car N.W. had described. Spruill testified that a car was parked outside of the house matching the description of the car described by N.W.
Spruill then knocked on the door of the house, and a black male, later identified as defendant, opened the door. Defendant stated that he lived there and identified himself as Pierre Deneus.1 Spruill asked Pierre what his phone number was, and he gave her the same number that N.W. provided. Spruill testified that the inside of the house appeared to match the description given by the victim. Another detective on the scene called the Irvington Police Department, and learned that defendant had an open traffic warrant. Defendant was arrested and taken to the Irvington Police Department.
B. Conspiracy and Witness Charges
After defendant's arrest on June 3, 2008, he was incarcerated at the Essex County Jail, where he was housed in the same “pod” as fellow inmate, B.T. B.T. had been arrested on May 29, 2009, for possession of a firearm and he met defendant while incarcerated. According to B.T., he and defendant went to court together one day and defendant started telling him about his case. B.T. testified that defendant asked him to kill someone named Julienne and “some other people[.]” B.T. believed defendant approached him because B.T.'s cousin was the “Godfather of the Bloods[.]” B.T. stated that defendant offered him $5000, and would pay B.T. half up front, and half when the job was done. B.T. at first demurred.
Defendant approached him a second time, and B.T. again refused. Later, B.T. overheard defendant telling another detainee how he wanted to kill a young girl. Upon hearing that a young girl was a target, B.T. said he became upset and told defendant that he “already got somebody on it.” B.T. testified he did this to “stall” defendant so that he could warn the girl's family.
Thereafter, defendant explained that he wanted B.T. to kill a fourteen year-old girl, her mother, and defendant's roommate. Defendant told B.T. “someone named Abraham and [defendant's] brother, Levelt” would “give [B.T.] the money and the gun.” B.T. then went to the officer's desk on his prison floor and told the officer he needed to speak to someone because “some guy” was going to “kill the child.”
On November 19, 2009, Detective Foti met with B.T. and asked B.T. to wear a concealed recording device and speak with defendant. The “wire” was set up approximately two days later.
B.T. returned to his pod at the jail and asked defendant if he wanted him to “hurt them[,]” and defendant replied “no, it was better if they're dead.” Defendant gave B.T. a piece of paper with the address and phone numbers for N.W. and Julienne. Defendant also gave B.T. the phone number of Levelt and Abraham.2 According to B.T., defendant told him “anything you need Abraham will provide you with[.]” However, B.T. and defendant never discussed money or a gun during the recorded conversation.
B.T. provided Foti with the paper containing the names of the persons defendant asked B.T. to “shoot or kill.” B.T. reported that defendant also gave him the number for Abraham, who would provide money and a gun. B.T. called Abraham at the request of defendant, and Abraham told him Levelt was going to pay B.T. Abraham gave him Levelt's telephone number.3 B.T. also asked Abraham about “the pistol,” and Abraham replied “huh[,] ․ what pistol.”
After the call, Foti contacted Abraham, but Abraham claimed to have no knowledge of an arranged murder. Foti asked Abraham about the call with B.T., and Abraham replied that their discussion pertained to money for a lawyer and bail.
On November 25, 2009, Officer Pomponio searched defendant's cell and recovered a piece of paper under his mattress with the addresses and phone numbers for Julienne and N.W. It also listed the victim's mother's name and Abraham's name and cell phone number. On the back of the paper there was the name Keith and a phone number.
At trial, Levelt testified that he never spoke with defendant about supplying anyone with a gun or money. He explained that while defendant was in custody, the only money he gave defendant was put in his inmate account for food. Levelt further stated that he never heard of a person named B.T.
Abraham, defendant's friend since 1992, testified that he did not remember being contacted by anyone named B.T., but he did recall a person calling him on defendant's behalf. He explained that the person who called him was asking about money and a gun, but Abraham told the caller that he had no idea what he was talking about, and he threatened to call the police if the person called again. Abraham testified that defendant never told him to provide anyone with a gun, and that he believed the caller had been inquiring about bail money for defendant.
Defendant testified that on May 30, 2008, he was on 18th Avenue in Irvington, checking his car, when a girl walked over to his car and put her head down on the trunk. She told defendant that her mother was seriously ill in the hospital and that she would like to visit her, but had no one to take her there, and no money for transportation. Defendant offered her ten dollars, which the girl accepted, but defendant realized that he did not have money with him. According to defendant, the girl asked if she could go with him to his house to get the money.
Defendant testified that he drove the girl to his house on Munn Avenue, where he lived with his friend, Julienne. When they arrived at his house, defendant asked the girl to wait outside while he looked for the money, but the girl entered the house. Defendant told the girl he could not find money, but she refused to leave the house without it, so defendant wrote his name and number down and told her to call if she still had an emergency. Defendant stated that the girl left his house as Julienne's girlfriend came home.
Later, a girl named Nicole called defendant asking for fifty dollars. According to defendant, the girl never gave her name, but he recognized “Nicole's” voice as the girl he had met earlier that day. Defendant testified that he told the girl “the deal wasn't $50, I have no appointment ․ for $50.” Defendant remembered the girl asking about sex, but he testified that he had “no appointment for sex or $50[,]” that he “had an appointment for $10 for an emergency if she called for [him] to give her the $10.”
Defendant testified that he met B.T. at the Essex County Jail. Defendant stated that he spoke with B.T. in the holding cell after his attorney told him to contact Julienne, and B.T. offered to help him get Julienne to meet with his attorney. According to defendant, B.T. told him that Julienne wanted to kill defendant. Defendant admitted that upon hearing Julienne wanted to kill him, he became interested in killing Julienne. Defendant believed that Julienne set him up with N.W. Defendant admitted that during the recorded conversation, he said “kill him,” referring to Julienne, but it was only because B.T. was pressuring him, and knew people who “did that.”
Later, defendant spoke with B.T. and told him that he changed his mind, he should not have agreed to have Julienne killed, and asked B.T. to destroy the paper. Defendant stated that he gave B.T. the names and addresses of N.W. and her mother so that B.T. could have Julienne ask them to speak with defendant's attorney. He testified he never told Abraham or Levelt to supply a gun or money to B.T., and that his conversation with B.T. only pertained to having Julienne and Abraham see his attorney.
Following two days of deliberation, the jury returned its verdict, finding defendant guilty, as noted earlier.
This appeal followed.
We shall address defendant's arguments on appeal in the order in which they are presented in the briefs.
Defendant initially argues that testimony provided by B.T. that “defendant and his brothers were major drug dealers and gang members” was “completely irrelevant” and deprived him of a fair trial. However, the statements defendant now argues deprived him of a fair trial were mostly elicited during cross-examination of B.T. by defendant's counsel.
For example, while being cross-examined about his efforts to “get[ ] out of jail” B.T. stated, “․ these Haitians ․ supply all of Newark, Irvington, East Orange with drugs.” In response to further questions, B.T. explained “they moved me because people like that are going to have you killed.” Defense counsel stated later he wanted to show that B.T. “was going to do anything to get out of jail.”
Also, while being examined about his recorded conversation with Abraham in which getting a weapon was not mentioned, B.T. stated, “You don't talk about weapons over the phone․ These people are from the street. They're drug dealers.” When asked why he never asked defendant during a recorded conversation about getting a weapon, B.T. said, “I didn't want to get him ․ nervous ․ and then go out and hire somebody else to do it ․ because one of those little gang members can make one phone call from inside the jail and have that child killed.”
Further, defense counsel followed up with questions about B.T.'s reference to “D” (the defendant) as a “notorious drug dealer” and B.T. responded by stating “they sell drugs ․ Him, his brothers.” Defense counsel then reminded B.T. he had testified earlier he never knew defendant before meeting him at the jail; and B.T. stated, “I knew Abraham. I know his brother, Levelt.” The prosecutor, on re-direct, thereafter brought out that B.T. told the State “they run a big drug ring” and he was “afraid for [his] life.” Defense counsel later called Detective Foti who testified he had no discussions with B.T. about defendant being a major drug dealer.
It is evident that much of this testimony had been elicited to discredit B.T. First, B.T. testified that defendant approached him because of B.T.'s own self-proclaimed gang connections. It was therefore improbable that defendant would have had to do that if, as B.T. claimed, he were actually a “gang member” himself. Also, B.T. was directly contradicted by Foti who said that B.T. never mentioned any gang or drug activity by defendant or his family. Both Abraham and Levelt testified about their legitimate employment. Finally, the State did not bring the subject up initially; rather, B.T. brought the issue to the fore during cross-examination, and as noted, defense counsel then turned B.T.'s testimony against him in an effort to discredit him.
Because this testimony was not the subject of objection by the defense, we examine these arguments under the plain error standard. Under that standard, a conviction will be reversed if the error was “clearly capable of producing an unjust result.” R. 2:10–2. “Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.” State v. Atwater, 400 N.J.Super. 319, 336 (App.Div.2008) (alteration in original) (internal quotation marks omitted). See also State v. Daniels, 182 N.J. 80, 95 (2004). Cf. State v. Sharpless, 314 N.J.Super. 440, 456 (App.Div.) (holding that defendant waived any potential objection by not objecting to a detective's testimony at trial), certif. denied, 157 N.J. 542 (1998), overruled on other grounds by State v. Richards, 351 N.J.Super. 289, 303 (App.Div.2002).
Guided by this standard, we do not find plain error. Not only was the testimony unexpected initially, and given in response to cross-examination, see State v. Yough, 208 N.J. 385, 388 (2011)(recognizing that the “testimony of witnesses may not always be predictable”), but thereafter a strategic decision was made by counsel to exploit the inconsistencies and improbabilities in B.T.'s testimony. Such strategic decisions will not ordinarily provide a predicate for overturning a verdict. Trial strategy is clearly within the discretion of competent trial counsel. State v. Coruzzi, 189 N.J.Super. 273, 321 (App.Div.), certif. denied, 94 N.J. 531 (1983). A reviewing court must grant substantial deference to the discretion of counsel in determining how to conduct trial. See State v. Arthur, 184 N.J. 307, 321 (2005). This heightened deference given to strategic decisions is only overcome when the defendant shows that the decision was based upon a lack of preparation for trial. Id. at 322–23. Defendant does not make this argument.
Further, given the strength of the State's proofs at trial, we perceive no basis on which to conclude that this sporadic testimony would have led the jury to reach a verdict it might not otherwise have reached. The proofs here were substantial.
Consequently, we reject defendant's arguments on this issue.
Defendant argues that the State presented “two different ways” the jury could convict him of kidnapping: asportation and confinement. He avers the judge erred in not charging the jury that they must be unanimous as to the specific basis for finding defendant guilty of kidnapping. Defendant did not object to the charge at the time of trial and raises this argument for the first time on appeal.
Defendant was charged with kidnapping pursuant to N.J.S.A. 2C:13–1b(1), which provides that: “[a] person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes: (1) To facilitate commission of any crime or flight thereafter[.]” Kidnapping is a crime of the first-degree, unless “the actor releases the victim unharmed and in a safe place prior to apprehension,” in which case, it is a crime of the second-degree. N.J.S.A. 2C:13–1c.
The trial judge instructed the jury as to the kidnapping charge as follows:
In order for you to find the defendant guilty of kidnapping as charged in Count 1, the State is required to prove each of the following two elements to you beyond a reasonable doubt: the first element, the defendant unlawfully removed [N.W.] a substantial distance from the vicinity where she was found or, there's two theories under this count, the defendant unlawfully confined [N.W.] for a substantial period. Either one of those theories.
And, ․ a second element, that the removal was for the purpose to facilitate the commission of a crime.
Except for the reference to the “two theories,” the charge given by the trial judge was consistent with the Model Charge. See Model Jury Charge (Criminal), Kidnapping (N.J.S.A. 2C:13–1b(1) to (3)) (rev.4/16/12).
During the jury's deliberation, the jurors requested “another re-reading of Count 1 and the Count's definition of kidnapping and the elements of kidnapping.” The trial judge asked counsel if there was any issue with her re-reading the whole charge to the jury and the defendant made no objection.
The trial judge instructed the jury a second time as to the two elements of kidnapping and that they must find the following elements beyond a reasonable doubt: “one, that the defendant unlawfully removed [N.W.] a substantial distance from the vicinity where she was found or unlawfully confined [N.W.] for a substantial period. That's one. It can be one or the other.” Following jury instructions, the judge gave a general unanimity instruction to the jury, where she instructed that their verdict must be unanimous, and explained that all twelve jurors must agree on whether defendant is guilty or not for every charge.
Defendant never objected to the jury charge on kidnapping, and did not request that the judge provide the jury with a specific unanimity charge. Consequently, the trial judge had no opportunity to consider defendant's argument raised on appeal. Defendant asserts that even though he did not request a specific unanimity instruction, the trial judge's failure to instruct was plain error. The issue, therefore, is whether the trial judge's failure to give a specific unanimity instruction sua sponte was clearly capable of producing an unjust result. State v. Frisby, 174 N.J. 583, 598 (2002)(citing R. 2:10–2); State v. Parker, 124 N.J. 628, 638 (1991).
Our Constitution requires a unanimous jury verdict in criminal cases. N.J. Const., art. I, para. 9; R. 1:8–9. In addition, proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981); State v. Afanador, 151 N.J. 41, 51 (1997). The court must give the jury “a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.” Green, supra, 86 N.J. at 287–88. The jury charge should include instruction on all “essential and fundamental issues and those dealing with substantially material points.” Id. at 290. In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960).
A general unanimity instruction is usually sufficient to protect defendant's right to a unanimous verdict. Parker, supra, 124 N.J. at 638. Our Supreme Court has held that a specific unanimity requirement is necessary only “in cases where there is a danger of a fragmented verdict” and that, in such cases, “the trial court must upon request offer a specific unanimity instruction.” Id. at 637 (citations omitted). This circumstance can arise where the facts are “exceptionally complex” or where there is a variance between the indictment and the trial proofs. Id. at 636. Moreover, “[a]lthough such a charge should be granted on request, in the absence of a specific request, the failure so to charge does not necessarily constitute reversible error.” Id. at 637. The “core question” in such cases is whether the “instructions as a whole posed a genuine risk that the jury would be confused.” Id. at 638.
We do not find a genuine risk of jury confusion in this case. The question for the jury here was whether defendant forced N.W. into his car, and thereafter forced her to enter his home, or whether N.W. went along voluntarily. There were no entirely distinct factual scenarios presented by the State for the jury to consider, and therefore the danger of a fragmented verdict here was not even reasonably debatable. Defendant's reliance on Frisby, does not warrant a different conclusion. There, the State advanced two very distinct theories against defendant on an endangering the welfare of a child charge, each requiring different acts and different evidence. Consequently, we find defendant's arguments on this issue unpersuasive.
Defendant argues, and the State concedes, that the trial judge erred when she stated she was required as a matter of law to impose consecutive sentences on the witness tampering charges in counts ten, eleven and twelve. The State further concedes that a remand is necessary to consider whether these counts, together with the hindering charge in count thirteen, merge with the conspiracy to commit murder conviction. We agree and remand to the trial court for resentencing and consideration of the issue of merger.
Defendant further argues that in the event the trial judge does not merge the second-degree witness tampering with the conspiracy to commit murder conviction, there was nonetheless insufficient evidence that defendant employed “force” or threatened the “use of force” to support that charge. Defendant contends that the only “threat of force” herein was the factual predicate of the conspiracy to commit murder charge. Because this issue is integral to the merger issue that we have directed the trial court to consider on remand, we likewise remand this issue to the trial court.
Defendant argues that his convictions were against the weight of the evidence. This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(2).
Affirmed, except that we remand for re-sentencing on counts ten, eleven, twelve and thirteen, and for consideration of defendant's arguments as to the sufficiency of the evidence supporting defendant's conviction for second-degree witness tampering on count ten. We do not retain jurisdiction.
1. FN1. Defendant later told Spruill that his name used to be Harry John Pierre.
2. FN2. The paper was introduced at the trial, and B.T. testified that some of the information was written in B.T.'s handwriting because he copied the information defendant provided him.
3. FN3. B.T. attempted to call Levelt, but was unsuccessful in reaching him.