STATE OF NEW JERSEY v. ARTHUR TIGGS (2010)

Defendant Arthur Tiggs appeals from a judgment of conviction and sentence.   Tried to a jury, defendant was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2);  third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b;  and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a.   The judge merged defendant's convictions for murder and possession of a firearm with an unlawful purpose, imposed the appropriate fines, penalties and assessments and sentenced defendant as follows:  for first-degree murder, to a term of incarceration for life that is subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2;  for unlawful possession of a handgun, to a five-year term of incarceration that is concurrent with his sentence for murder.

We reject defendant's claim that a mistake in the judge's description of the identification evidence warrants reversal;  reverse and vacate his conviction for unlawful possession of a handgun because the judge instructed the jury on the elements of a different weapons offense not charged in the indictment;  and affirm defendant's sentence for first-degree murder.

Lance Pettiford was shot and killed shortly before 3:00 a.m. on April 9, 2006, outside the Cave Lounge on Halsey Street in Newark.   Defendant was at the Cave to attend his own birthday party;  he had arrived between 1:15 and 1:45 a.m.

The Cave is a bar owned by Vanessa and Charles Walker.   El Raqib Poole, a/k/a Namiel, who is a friend of defendant's and worked for the Walkers, helped arrange the party.   Not all of those present were guests;  the Cave was also open for regular business.

Vanessa Walker and her cousin, Cynthia Boggs, arrived before defendant, and Vanessa met him at the door and took his coat.   Although there were two men stationed outside the entrance to check for weapons and identification, Vanessa did not know whether defendant was searched.   Several others who were there said they had not been searched, including Poole;  Boggs;  Hodges Sears, who is a friend of the Walkers' son Brad;  Sean Williams, a regular patron who arrived at about 2:00 a.m.;   and Timothy Williams, who came with Sean Williams.   Pettiford went into the Cave with Sean and Timothy Williams.   There is no evidence of any disturbance, fight or altercation inside the Cave that night.

During the course of the party, defendant, Sears and Poole went outside to smoke.   According to Sears, his companions shared a cigar filled with marijuana rather than tobacco.   While they were smoking, Pettiford and Sean Williams left the Cave and crossed the street.   Timothy Williams joined them and had a bottle of liquor.

According to Poole, Timothy Williams cursed at his group from across the street.   Poole was not threatened, but he noticed that defendant seemed to be upset.   Poole heard defendant say, “I had a vision that somebody - somebody got shot - I popped somebody for my birthday.”   He told defendant to think about his son and “leave it alone.”

Sears heard defendant say he wanted to “push” somebody, which Sears understood to mean that defendant wanted to shoot someone.   Sears ignored the comment because he did not think defendant would do such a thing, but he also said that defendant was mildly intoxicated and appeared to have something on his mind.

Poole left.   From his car he noticed defendant standing by the door of the Cave and did not see him with a gun.   At 2:53 a.m., Sears went back into the Cave to find his girlfriend;  defendant remained outside.   After Sears found his girlfriend, they left the Cave and walked toward his truck.   Defendant crossed the street.

Sean Williams, still outside with Timothy Williams and Pettiford, heard one loud pop in his left ear, turned around and saw Pettiford falling into Timothy's arms.   Defendant ran past Sean. As defendant passed, Sean saw that he had a gun in his right hand.

Sears, still walking to his truck, also heard a gun shot.   He turned and saw defendant running in the middle of the street, yelling something and holding a black “357 revolver” in his right hand.

Vanessa Walker and Boggs had left the Cave just before the shooting.   Both women heard but did not see the shot fired.   Boggs heard someone yell, “Oh my God. Lance got shot in the head”;  she looked across the street and saw defendant with a gun in his hand, and she retreated into the Cave with Vanessa.

Videotapes from the Cave's four surveillance cameras were retrieved by the police who responded to the scene.   The tapes from the camera mounted outside depicted some of the comings and goings of the patrons described above, including defendant's crossing the street just prior to the shooting.   The shooting was not captured by the camera.

The police took statements from the witnesses and compiled a photo array.   Sears, Poole, Boggs and Sean Williams all selected defendant's photo from an array and identified him in court.   Sears identified him as the person who ran away with a gun after the shooting.   Poole identified him as the person who said “I had a vision I popped somebody on my birthday.”   Boggs said defendant was the person she saw with a gun in his hand, and Sean Williams said he was the person he saw with a gun on the night of the shooting and the one who killed his cousin.   Timothy Williams could not make an identification.

Later that day, defendant called Sears.   He asked Sears to talk to Brad Walker so that Brad could get the Cave's surveillance tapes from his father, Charles Walker.   Defendant also gave Sears his new telephone number.   On another occasion defendant called Sears and threatened, “[people] better get money up for my lawyer or I'm gonna say they had something to do with it.”   Sears hung up and called a detective.

Reservations were made in defendant's name to travel to Atlanta by train and by air.   He, his girlfriend and their child used the stand-by airplane tickets on April 10, 2006.   The train tickets were cancelled.   On May 3, 2006, defendant surrendered to law enforcement in Orange, New Jersey.

Dr. May Jennifer Amolat, M.D., an assistant medical examiner, did the autopsy.   She found that Pettiford's death was caused by a “penetrating gunshot wound of the head, located at the left forehead, proceeding left to right, front to back, and slightly downward.”   In her opinion, “the presence of soot in the bony skull, close to the entrance ․ [and] the extensive fragmentation of the skull bones [was] consistent with a contact wound.”

The defense stipulated that defendant did not have a permit to carry a handgun.   Defendant did not testify or present any witnesses.

He raises three issues on appeal:

I.  THE TRIAL WAS IRREPARABLY TAINTED WHEN,

IN HIS CLOSING INSTRUCTIONS, THE JUDGE ERRONEOUSLY ADVISED THE JURY THAT FOUR OF THE WITNESSES HAD ALL IDENTIFIED DEFENDANT AS “THE PERSON WHO COMMITTED THE MURDER.” 1  (Not Raised Below).

II. BECAUSE THE JURY WAS NOT PROPERLY

INSTRUCTED AS TO THE CHARGE OF UNLAWFUL POSSESSION OF A WEAPON, THAT CONVICTION MUST BE VACATED.  (Not Raised Below).

III. THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING A LIFE TERM, THUS VIRTUALLY ENSURING THAT DEFENDANT WILL NEVER LEAVE PRISON.

There is no question that the trial judge misspoke when referring to the identification evidence.   He stated that four of the witnesses had identified defendant as the person who committed the murder, which is not consistent with the testimony or the evidence documenting the out-of-court identifications.   The State contends that the judge's mistake, viewed in the context of the charge as a whole and the trial evidence, had no capacity to prejudice defendant.   We agree.

The portion of the charge at issue is as follows:

Here the State has presented the testimony of Hodge Sears, Sean Williams, Cynthia Boggs, and [El Raqib] Poole.   If you'll recall that these witnesses identified the defendant in court as the person who committed the murder.

The State also presented testimony that on a prior occasion before this trial, these witnesses identified the defendant as the person who committed these offenses.

The defense did not object to this misstatement at trial, which we may infer indicates that the defense did not deem this obvious misstatement to be prejudicial at the time.  State v. Macon, 57 N.J. 325, 333 (1971).   In any event, the failure to object requires us to review this misstatement for plain error - error that is “ ‘clearly capable of producing an unjust result.’ ”   State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting R. 2:10-2).

“In the context of a jury charge, plain error requires demonstration of ‘legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.’ ”  State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).   The prejudicial capacity “must be evaluated in light ‘of the overall strength of the State's case.’ ”  Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

The misstatement was blatant.   The witnesses did not say that they saw defendant shoot Pettiford, but the State made that clear from the outset and never suggested otherwise.   In his opening statement, the prosecutor said that none of the witnesses “actually saw the defendant squeeze the trigger” and that “none of them saw it.”   In his summation, the prosecutor discussed what the witnesses said they saw and their comings and goings as depicted on the videotape.   Defense counsel also emphasized that sole weakness in the State's proofs.   In short, there was no room for confusion on the point about which the judge misspoke.

There is more than the fact that the misstatement was too apparent to be misleading to indicate that this error was harmless.   A reviewing court must view a jury instruction as a whole.   In part pertinent to this misstatement, the judge instructed the jurors that they were the judges of the facts.   He also directed them that “[r]egardless of what counsel said or I may have said [in] recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts.”

In the absence of evidence to the contrary, courts presume that jurors follow clear instructions from the judge.  State v. Burris, 145 N.J. 509, 531 (1996).   Here, there is nothing that would allow us to conclude that the jurors ignored the judge's directions on their obligation to decide the facts for themselves.   This jury deliberated for two days during which they asked for a re-play of testimony.   That course of conduct demonstrates careful consideration of the evidence, not a determination based upon the judge's passing and unfortunately mistaken reference to the identification evidence.

Finally, the State's circumstantial evidence establishing defendant's identity as the shooter and his state of mind was overwhelming.   The jury heard defendant's friends testify about what he said prior to the shooting, saw a videotape showing him crossing the street just before the shooting, and listened to eyewitness accounts of defendant running away with a gun in his hand.

Viewing the charge as a whole and the strength of the State's evidence, we have no doubt that this passing and mistaken description of the identification was incapable of leading the jury to reach a verdict that it would not have reached if the judge had not misspoken.

Defendant's second objection to the jury instruction, in contrast, warrants reversal of his conviction for unlawful possession of a handgun.   The jury was instructed on the elements of fourth-degree possession of a weapon under circumstances manifestly inappropriate to its lawful use.  N.J.S.A. 2C:39-5d.   The jurors were not given an instruction on the third-degree crime of possession of a handgun without having obtained a permit to carry.  N.J.S.A. 2C:39-5b.   Recognizing the magnitude of the error and its responsibility to see that convictions are obtained in a manner consistent with a defendant's right to a jury trial, State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L. Ed.2d 205 (1989), the State acknowledges that defendant's conviction for unlawful possession of a weapon must be vacated.   That conviction is reversed.

We turn to consider defendant's objections to his life sentence for first-degree murder.   He claims the court impermissibly engaged in double-counting in finding aggravating factor one, which is based on the nature and circumstances of the offense and the manner in which it was committed.  N.J.S.A. 2C:44-1a(1).   He also contends that the judge improperly relied on the need for general deterrence based upon a widely-reported schoolyard shooting in Newark that occurred less than a month before defendant's sentencing.²  Defendant does not challenge the judge's assessment of the mitigating factors.

When defendant was sentenced he was twenty-four years old and had a high school diploma and a certificate of training in auto body work.   He had three children, one of whom was living with him and the child's mother prior to his arrest, and he had worked for Federal Express from January 2005 through June 2005.   He was obligated to pay child support to the mothers of his other two children and owed $3210 for past-due support.

As a juvenile, defendant was adjudicated delinquent for receiving stolen property and aggravated assault in June 2001, and for unlawful taking of a means of conveyance and a drug offense in August 2001.   In both instances he was sentenced to probation, the second time conditioned upon a period of in-home detention.   He completed both probationary terms without violation.

This first-degree murder was defendant's first criminal conviction.   Although defendant had prior charges arising from a single incident in September 2003 - conspiracy to commit theft, burglary and theft, those charges were dismissed.

Aggravating factor one applies when warranted by “[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner․”  N.J.S.A. 2C:44-1a(1).   The judge relied on the evidence of motive offered by the State - defendant's pre-shooting comments about killing someone on his birthday.   The testimony about defendant's statements provides adequate support for a finding that this was defendant's only reason for killing Pettiford.

The judge found:

Your callous disregard, as found by the jury, of human life exhibited by you in your execution of Lance Pettiford is undoubtedly an aggravating factor.   While there can be no good reason for your despicable act of murder, the reason for it expressed by you, as testified ․ during your trial, was particularly and especially heinous.   The fact that frivolously you pointed a gun - placed a gun, a loaded weapon to the head of an individual who was unknown to you in order to somehow or another, in some warped manner celebrate your birthday is heinous and depraved.

Defendant argues “the fact that someone would commit murder to commemorate his birthday is, indeed, so incomprehensible as to be horrifying.   But a single and unexpected gunshot to the head, which caused death almost instantaneously, does not qualify as an especially heinous, cruel or depraved murder under the statute.”

We cannot agree that the judge misapplied this aggravating factor.   Judicial decisions discussing depravity relevant to sentencing indicate otherwise.   In discussing the meaning of depravity in the context of capital sentencing under prior law, the Supreme Court considered an aggravating factor relevant when “ ‘[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.’ ”  State v. Ramseur, 106 N.J. 123, 197 (1987) (quoting N.J.S.A. 2C:11-3c(4)(c)).  The Court concluded that “depravity of mind”

mark[s] society's concern to punish severely those who murder without purpose or meaning as distinguished from those who murder for a purpose (albeit a completely unjustified purpose).   This term isolates conduct that causes the greatest abhorrence and terror within an ordered society, because citizens cannot either in fact or in perception protect themselves from these random acts of violence.   The killer who does it because he likes it, perhaps even because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder, evinces what we define as depravity of mind.

[Id. at 209 (footnote omitted).]

In a footnote the Court elaborated, explaining that “[t]he

helplessness of the victim is not the factor that, by itself, allows a finding of depravity;  rather, it usually demonstrates the senselessness of the killing.”  Id. at 209 n.36.

The Court has also referred to the senselessness of a crime and this court has referred to other motives inimical to ordered society in upholding a trial judge's finding on aggravating factor one.  State v. Bowens, 108 N.J. 622, 639-40 (1987) (approving reliance on the senselessness of a stabbing);  State v. Byard, 328 N.J.Super. 106, 116 (App.Div.) (concluding “that because the arson was committed in retaliation for [the victim's] complaining to the police and signing a complaint, there was sufficient evidence in the record to support the trial court's finding that the nature and circumstances of the offense was an aggravating factor), certif. denied, 165 N.J. 490 (2000).

We conclude that the trial judge did not misinterpret the phrase “depraved manner” when it found that a murder committed to commemorate the killer's birthday is one committed in that manner.   His understanding of the legal meaning is consistent with that ascribed to “depravity of mind” by the Supreme Court in Ramseur.

Defendant also objects to the judge's findings on aggravating factor nine - “The need for deterring the defendant and others from violating the law,” N.J.S.A. 2C:44-1a(1).   His objection here is that the judge improperly focused on the violent crimes being committed in the City of Newark.

Having found a need to deter defendant specifically, the judge acknowledged that decisions of this court have indicated that deterrence of the specific defendant is more relevant to a sentence than deterrence of the public in general.   See, e.g., State ex rel. D.W., 317 N.J.Super. 138, 147 (App.Div.1998).   The judge reasoned:

[S]ometimes in some places, that need for a general deterrent becomes greater.   And there is no greater need than now.

The Legislature chose to include general deterrence as an aggravating factor․  After all, isn't it a major i[f] not, most significant purpose of sentencing to send a message to the individuals who might contemplate committing such crimes, that the commission of such crimes will not be tolerated?   Isn't it this [c]ourt's role to send a clear message that your conduct ․ is simply not acceptable and will be severely punished?   Isn't this the time and isn't this the place where the need to deter murder is the greatest?   Isn't 60 plus murders in a city of comparatively small size, like Newark, over a bit more than a half a year, a sufficient basis to give general deterrence greater weight?

This [c]ourt believes that it is this time and this place where the need to deter is greatest.

The Supreme Court has recognized that “demands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense and the deliberateness of the offender.”  In re C.A.H. & B.A.R., 89 N.J. 326, 337 (1982);  accord State v. Megargel, 143 N.J. 484, 501 (1996).   The Court has explained:

Since the goal of deterrence is to thwart future crimes and to modify the conduct both of the offender and others who might commit offenses, it constitutes a much more potent factor in the treatment of persons who have committed crimes which are perceived to be avoidable or preventable.   Such crimes are usually those which result from volitional, deliberate and nonimpulsive behavior.   This type of criminal behavior is presumably capable of being modified or reversed by punishment.   It is assumed that a person who has committed such a crime weighs the consequences of his actions and, if punished severely for his criminal act, will avoid its repetition.   We also expect that strict punishment in such circumstances will be a vicarious penal lesson to other similarly disposed persons, who will be deterred from engaging in criminal acts.

[In re C.A.H. & B.A.R., supra, 89 N.J. at 335 (citations omitted).]

Again, we cannot conclude that the judge misapplied the law in focusing on the need to deter defendant and others who deliberately take the life of another.   Megargel, supra, 143 N.J. at 501.   This murder was one that was avoidable and preventable as well as volitional, deliberate and nonimpulsive.  In re C.A.H. & B.A.R., supra, 89 N.J. at 335.   Defendant spoke of killing someone on his birthday, crossed the street and took Lance Pettiford's life by holding a gun to his forehead and shooting.

Accordingly, on the arguments presented, we see no basis for disturbing the sentence.   It is based upon the judge's conscientious consideration of aggravating factors supported by the record and applied in accordance with the law.  State v. Bieniek, 200 N.J. 601, 607-09 (2010).

Defendant's conviction and sentence for murder are affirmed;  his conviction for possession of a handgun without a permit is reversed;  and the matter is remanded for entry of an amended judgment of conviction.

FOOTNOTES

FN1. Defendant has submitted a pro se brief also raising this issue..  FN1. Defendant has submitted a pro se brief also raising this issue.

FN2. Defendant attempted to bolster this argument with reference to newspaper articles that are not part of the record and have been stricken from defendant's appendix by order of this court entered on the State's motion..  FN2. Defendant attempted to bolster this argument with reference to newspaper articles that are not part of the record and have been stricken from defendant's appendix by order of this court entered on the State's motion.

PER CURIAM