STATE v. WOODALL Docket No. A-1479-09T4.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARA WOODALL, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.
Decided July 1, 2011.
Jack J. Lipari, Assistant Prosecutor, argued the cause for respondent (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).
Before Judges Fisher, Sapp-Peterson and Fasciale.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In appealing her conviction for, among other things, first-degree murder, defendant argues the trial judge: erroneously failed to instruct the jury of the lesser-included offense of aggravated manslaughter; mistakenly admitted character and other-crimes evidence; and imposed an excessive sentence. We reject these arguments and affirm.

The evidence adduced at trial revealed that in the early morning hours of September 22, 2007, in Atlantic City, defendant and her friend, Ashley Biscardi, argued about whether Biscardi had been unfaithful to her. After Biscardi left their hotel room, defendant became agitated over her absence and also left the hotel in search of her. Once outside, defendant encountered a group of men, who heckled defendant about her sexual orientation and her relationship with Biscardi. Defendant found Biscardi and physically attacked her, pulling her hair and shoving her before Biscardi was pulled away by another friend.

Defendant returned to and confronted the group of men, who continued to taunt defendant as onlookers laughed. Enraged, defendant made a telephone call, and when a vehicle arrived, defendant retrieved a gun from one of its occupants. By that time, some of the members of the group that had taunted defendant had left to another area, leaving Charles Williams, Ernest Marable and a few others behind. Defendant, along with a group of males, chased Williams, Marable, and others down the street, firing a handgun in their direction. Marable was hit in the arm by a shot fired from a .45 caliber weapon but was able to run off and find refuge in a nearby apartment. Williams was not so fortunate. He was hit by multiple gunshots from a .40 caliber weapon. One shot hit the back of Williams's left leg. At least two and possibly a third gunshot went through Williams's head and upper torso. The Atlantic County Medical Examiner testified without contradiction that Williams died almost immediately from a gunshot to the head. Neither weapon fired that evening was ever recovered.

Defendant was charged with: first-degree murder, N.J.S.A. 2C:11-3a(1) and -3a(2); second-degree conspiracy to possess a weapon for an unlawful purpose, N.J.S.A. 2C:5-2; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Co-defendant Carlos Woodall was charged with the same offenses, with the exception of murder, and was also charged with third-degree hindering apprehension, N.J.S.A. 2C:29-3a(3). At the conclusion of a seven-day trial, Carlos Woodall was acquitted of all charges. Defendant was convicted of all the charged offenses except conspiracy.

At sentencing, the judge merged all other convictions into the murder conviction and imposed a seventy-year prison term subject to an 85% period of parole ineligibility. Defendant appealed, presenting the following arguments for our consideration:

I. THE JUDGE IMPROPERLY DENIED THE JOINT REQUEST BY THE DEFENSE AND THE STATE TO CHARGE AGGRAVATED MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE OF MURDER; THE EVIDENCE PRESENTED SO MANY CONFLICTING VERSIONS OF THE FACTS THAT THE JURY HAD A RATIONAL BASIS FOR QUESTIONING THE FACTS OF THE SHOOTING AND WHETHER THE DEFENDANT POSSESSED THE MENS REA FOR MURDER OR MERELY AGGRAVATED MAN-SLAUGHTER. II. THE STATE'S REPEATED ATTEMPTS, THROUGH LAW-ENFORCEMENT TESTIMONY AND THE PROSECU-TOR'S SUMMATION, TO PAINT A PICTURE OF THE COMMUNITY WHERE THE CRIME TOOK PLACE AS ONE WHERE WITNESSES ROUTINELY FEAR FOR THEIR SAFETY IF THEY TESTIFY OR OTHERWISE PROVIDE EVIDENCE TO POLICE, WAS: (1) AN IMPROPER USE OF CHARACTER EVIDENCE TO PROVE SPECIFIC CONDUCT IN VIOLATION OF N.J.R.E. 404(a); (2) AN ATTEMPT TO BESMIRCH DEFENDANT'S CHARACTER IN VIOLATION OF THAT RULE AND N.J.R.E. 404(b); AND (3) WHOLLY IMPROPER WITHOUT A LIMITING INSTRUCTION TO RESTRICT THE JURY'S USE OF THAT EVIDENCE (Not Raised Below). III. THE MATTER SHOULD BE REMANDED FOR RESENTENCING.

We find insufficient merit in the arguments contained in Points II and III to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject Point I for the following reasons.

In considering the arguments contained in defendant's Point I — that the judge erred in refusing to instruct or permit the jury to consider whether defendant committed aggravated manslaughter — we start with N.J.S.A. 2C:1-8(e), which directs that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." This statute requires consideration of (1) whether "the requested charge satisf[ies] the definition of an included offense set forth in N.J.S.A. 2C:1-8(d)," and (2) whether there is a "rational basis in the evidence to support a charge on that included offense." State v. Cassady, 198 N.J. 165, 178 (2009); see also State v. Thomas, 187 N.J. 119, 130-31 (2006). The first aspect of this test was certainly satisfied here, as we have recognized there is "no dispute that aggravated manslaughter and manslaughter are true lesser-included offenses to murder." State v. Ramsey, 415 N.J.Super. 257, 263-64 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011). Instead, the major area of contention on this point concerns whether there was "a rational basis" in the evidence to support a charge on the included offense.

Certainly, the State is correct that the evidence supported an instruction that defendant's "conscious object [was] to cause serious bodily injury that then resulted in the victim's death" and permitted a determination that defendant committed first-degree purposeful or knowing murder.1 See State v. Simon, 161 N.J. 416, 449 (1999). Defendant argues, however, that the evidence could also have rationally supported a finding that the killing was reckless and committed with extreme indifference for human life, pursuant to N.J.S.A. 2C:11-4a.

To be sure, the jury heard multiple versions of the shootings that do not perfectly coincide with each other. We reject, however, the contention that the jury could have rationally found defendant acted with an intent less than that required by purposeful or knowing murder.2 As applied to the testimony in this case, the question is whether there was evidence that would have permitted the jury to conclude that the fatal gunshot was fired while defendant was pursuing Williams as he ran away and not, as related by most witnesses, that defendant first wounded Williams in the leg and then, as Williams lay prone, executed him at point blank range.3 Certainly the evidence supported the latter theory; the question is whether the former theory was rationally suggested by the evidence. In short, the question is whether there was evidence to suggest that the fatal gunshot was fired while defendant and the victim were on the run. "[S]heer speculation does not constitute a rational basis." State v. Brent, 137 N.J. 107, 118 (1994).

In support of her argument, defendant alludes to the testimony of three witnesses: Joseph Blake, Denise Grant, and Ernest Marable. As for Blake, defendant refers to that part of a statement he gave police after the shooting, in which he related that "motherfuckers came around the corner shooting and [Williams] just took off running." In context, however, it is clear that Blake was relating only an earlier portion of the entire episode and that he did not see the events that unfolded when later shots were fired; instead, as he mentioned in his statement to police, after he saw defendant and Williams running, Blake went into his home and closed the door, and only later when police arrived did he see Williams's body "laying in the dirt."

Similarly, Denise Grant gave an account of being in her apartment watching television. She looked out of her apartment as the commotion began and saw defendant running down the street firing a weapon. She gave no testimony as to the remainder of the episode that resulted in Williams's death.

And, lastly, defendant relies on the testimony of Marable, who described being chased along with Williams by defendant, who was firing a weapon in their direction. Marable explained how defendant and others came walking toward the group he was in. He was then asked how close defendant got from him and Williams, and he responded:

A. I can't really tell because once they started coming, me and [Williams] turn our backs and start walking, so start walking down this street. . . . . Q. . . . Then what happen[ed]? A. Somebody . . . said they got guns. . . . . Q. And who was behind you that you knew? A. [Defendant] and I ain't know the other four jokers. Q. Did you look back? A. No. Q. What did you do when you heard that? A. When he said he got guns, he said run. We started running. Q. Did you hear shots fired? A. Yeah. Q. You heard shots fired before? A. Yes. Q. You were sure they came from a gun? A. Yeah. Q. Were you in front of [Williams] or behind him? A. I was in front of him. Q. Did you hear him say anything? A. I heard he was like, ah, shit. Q. Some point you got hit? A. Yes.

Marable then described how he ran to a nearby apartment and after knocking, burst through an apartment door and was assisted by the occupant. He gave no testimony regarding what thereafter happened with defendant or Williams.

The testimony of these three witnesses, Blake, Grant and Marable, upon which defendant relies, does not provide a rational basis for a finding that defendant fatally shot Williams while running after him and not at point-blank range as testified to by others. These witnesses saw only part of the entire episode — the very beginning — when defendant chased the group that heckled her. By the time the final shots were fired, these three witnesses were indoors and out of sight. This is, thus, not a situation where individuals observing the same incident saw different things, thereby suggesting multiple theories of criminality. These three witnesses did not profess to see the entire episode. Those that witnessed the final shots or had a view of the field when they were fired consistently testified — albeit with minor discrepancies — that defendant shot defendant at close range, undoubtedly with the intent to kill.

Affirmed.

FootNotes


1. Defendant concedes that "the jury was certainly provided [with] enough evidence to return a murder verdict[.]"
2. We also reject defendant's contention that the trial judge utilized the wrong standard. Defendant's argument is based upon the judge's comment that "the propriety of [a] decision to submit the crime of ag[gravated] manslaughter to the jury depends on whether the evidence a basis for finding that defendant fired the gunshot that killed [the victim] consciously disregarding a probability of causing the death of a person . . . but without an awareness that it was practically certain that someone would die as a result" (emphasis added). Defendant relies on the emphasized portion of these comments to suggest that the judge imposed a higher burden than the "rational basis" test described in the cases cited above. Although the judge's emphasized comment — taken literally — would support defendant's argument, we are satisfied from a consideration of the judge's entire opinion on the subject, both during the charge conference and in later proceedings, that he applied the rational basis test and merely misspoke when he said that the question depends on whether the evidence "clearly indicated" aggravated manslaughter.
3. The State's theory, with which the jury obviously agreed, was supported by a number of witnesses, including David Wiggins, who was on the porch of his nearby residence when he first heard the angry exchange of words culminating in defendant's angry statements: "I'll be right back motherfucker" and "I'll kill that motherfucker." He also watched as defendant fired a shot while chasing Williams that caused Williams to fall, and that he watched as Williams put his hands in the air and then shot multiple times by defendant as she "practically [stood] on top of him."

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