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January 27, 2006
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.JEFFREY DRURY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 01-07-0898-I.
Submitted September 21, 2005
Before Judges Wecker, Fuentes and Graves.
On or about September 17, 2000, a Grand Jury indicted defendant Aquil Busch, a.k.a. Jeffrey Drury, on thirteen counts. The case was tried over nine days between May 13, 2003, and June 3, 2003.
The jury found defendant guilty of the following: Count 3, first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; Count 4, third-degree terroristic threats, N.J.S.A. 2C:12-3; Counts 5, 6, 7, and 8, first-degree carjacking, N.J.S.A. 2C:15-2; Count 9, third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a; Counts 10, 11, 12, and 13, first-degree kidnapping, N.J.S.A. 2C:13-1b.*fn1
Defendant received twenty years on Count 3, first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; five years on Count 4, third-degree terroristic threats, N.J.S.A. 2C:12-3, concurrent to Count 3; twenty-five years on Counts 5, 6, 7, and 8, first-degree carjacking, N.J.S.A. 2C:15-2, concurrent to each other and consecutive to Counts 3 and 4; and twenty-five years on Counts 10, 11, 12, and 13, first-degree kidnapping, N.J.S.A. 2C:13-1b, concurrent to each other and to Counts 5 through 8, and consecutive to Counts 3 and 4. Count 9, third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a, was merged into Count 5.
The trial judge imposed an eighty-five percent parole ineligibility term (seventeen years) on Count 3, aggravated sexual assault, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 ("NERA"), and a ten-year period of parole ineligibility on each of Counts 5 through 8 and 10 through 13. Defendant's aggregate sentence therefore was forty-five years, the first twenty-seven without parole eligibility.
On appeal, defendant presents these arguments:
THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY QUESTIONING DEFENDANT ON HIS POST-ARREST SILENCE. (Not Raised Below).
A JUDGMENT OF ACQUITTAL MUST BE ENTERED ON COUNT THREE, AGGRAVATED SEXUAL ASSAULT, AS THE STATE FAILED TO PROVE THIS OFFENSE BEYOND A REASONABLE DOUBT. (Partially Raised Below).
IMPOSITION OF PRISION TERMS ABOVE THE PRESUMPTIVE WHICH INCLUDE PAROLE DISQUALIFIERS VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below).
On September 16, 2000, at about 11:45 p.m., Jane Jones and three of her high school friends, Alex Armour, Bob Brown and Mary Morgan,*fn2 drove to Trenton, New Jersey, in search of marijuana to purchase. Sometime after midnight, they noticed a man lying on the side of the street, and when they drove near him, they heard him say "weed" several times. Intending to make sure the man was not dead or in need of help, they slowed their automobile. When the driver, Brown, stopped the car, a man, later identified as defendant, approached, opened an unlocked rear door and entered the car uninvited. Defendant then provided verbal directions to a certain house and told the teenagers that if they took him to the house, he would get them marijuana.
Once at the house, defendant left the vehicle and told the teenagers he would be right back. When he returned, he said he needed to go to another location for the drugs. After instructing them to take him to a second location, defendant demanded that one of the females accompany him into the house, and Jones went with him. At trial, she testified that defendant locked her in a room inside the house and choked her to unconsciousness. When she awakened, he threatened her by saying he had a knife, and he raped her. None of the teenagers used their cell phones to call for help because they were afraid of defendant and afraid of being punished for attempting to purchase illegal drugs.
Approximately twenty minutes after entering the house, defendant and Jones returned to the automobile. Defendant opened the unlocked driver's door and told Brown to move. Jones, who was crying, entered the back seat, exhibiting a cut on her eye and marks on her neck. Morgan testified that Jones subsequently told her that defendant had raped her.
About forty-five minutes after taking control of the automobile, defendant stopped the car, took the keys and left. The teenagers then exited the automobile and ran away; Jones ran with untied shoes and unbuttoned pants. The teenagers eventually found help and contacted the police. A detective took Jones to the hospital, where she underwent a sexual assault exam. After the exam, a detective photographed the visible injuries on her face and neck.
The vehicle was later found abandoned. A crack pipe was found inside. Jones and Brown identified defendant from a photo line-up. His DNA profile matched the spermatozoa profile on Jones's underwear.
Defendant testified to a different version of events that occurred on the night of September 16, 2000. He testified that when he first encountered the teenagers, he got permission to enter the automobile after yelling to them that he had drugs for sale. Defendant testified that the teenagers purchased $10 worth of crack, and that he offered to give them extra if they drove him to West Trenton. Defendant also testified that while in the car, he had a conversation with Jones about an exchange of sex for money, that Jones agreed to engage in sexual intercourse for $50, and that he paid her $25 "upfront." Defendant testified that he demanded his money back when intercourse did not occur, and that when Jones tried to leave, he "grabbed her around the neck" and told her to give him back his money.
They returned to the car, and defendant suggested to Brown that he, defendant, should drive because it was late, and he knew how to get back to where he had been picked up. He repeatedly stopped to conduct drug sales from the car over a period of about forty-five minutes. Defendant testified that the teenagers were afraid because people were on the streets, jumping on cars; therefore, before making his last sale, he drove them to a secluded area and took the automobile keys so they would not leave him. When he returned to find the teenagers gone, he drove around looking for them. Then he parked the car and left the keys.
N.J.S.A. 2C:14-2a(3) raises second-degree sexual assault to first-degree "aggravated" sexual assault if the sexual assault occurred under specific conditions, including if it occurred "during the commission, or attempted commission, . . . of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape." Carjacking is not explicitly enumerated in that statute. Prior to trial, the State moved to re-indict defendant on Counts 2 and 3, each of which alleged aggravated sexual assault by "an act of penetration . . . during the commission or attempted commission of carjacking," because "carjacking" was not one of the expressly listed offenses in N.J.S.A. 2C:14-2a(3). The State moved to take the case back to the grand jury in order to seek an amended indictment alleging "kidnapping," which is an enumerated offense in the statute, instead of "carjacking" as the underlying offense. The trial judge deemed the request unnecessary, and therefore denied the motion. The judge analogized to the offense of "murder," which also is not in the statute, whereas the broader offense of homicide is.
THE COURT: It doesn't say anything about murder either, but I think we would all agree that murder would be one of the crimes that if committed during the course of a sexual assault, would cause it to be upgraded to aggravated sexual assault, right?
DEFENSE COUNSEL: Yes, your Honor, I would agree with that.
The judge then stated that the crime of carjacking is an upgrade of the crime of robbery, which is an enumerated offense in the statute. The judge also reiterated his analogy to murder and manslaughter (which are not enumerated offenses in the statute) and homicide (which is an enumerated offense in the statute), contending that even though "murder" and "manslaughter" are not expressly listed in the statute, they are crimes that are raised to the "aggravated" status pursuant to the accepted contention that they fall under the generic "homicide."
Prior to rendering sentence, the judge noted that he had reviewed the pre-sentence report, and named defendant's prior convictions. The judge then found aggravating factors 1, 3, 6, and 9, N.J.S.A. 2C:44-1a(1), (3), (6), and (9), but no mitigating factors, N.J.S.A. 2C:44-1b, and sentenced defendant to an aggregate term of forty-five years with a twenty-seven-year minimum prior to eligibility for parole.
The judge expressly based aggravating factor 1, the nature of the offense, on his finding that defendant had generated fear in multiple victims for a substantial period of time. The judge appears to have based aggravating factors 3 (the risk that defendant would commit another crime), 6 (whether defendant's prior criminal record justifies a substantial sentence), and 9 (whether there is a need for deterrence) on defendant's prior criminal record,*fn3 stating that "it seems his crimes are more serious as they occur," that the defendant's "prior criminal record justifies the imposition of a substantial prison term," and that "there is a very real and very definite need for deterrence."
The judge ruled that defendant's sentences on the carjacking counts would run concurrent to each other but consecutive to the aggravated sexual assault sentence; and the sentences on each kidnapping count would run concurrent to those for carjacking but consecutive to the sentences for aggravated sexual assault and terroristic threats. The judge explained that he imposed consecutive sentences because carjacking and kidnapping:
"[a]re separate and distinct from the crime of aggravated assault . . . and each of the carjacking and kidnapping counts are a separate and distinct crime and for three out of the four counts of each there are other victims . . . and in light of all the circumstances before the court, there's a justification for a consecutive sentence for the carjacking and kidnapping that is consecutive to the aggravated sexual assault count of the indictment.
The judge also stated that he felt strongly about imposing a consecutive sentence for the kidnapping and carjacking counts, but did not do so because of the similarity between those crimes and because of the potential for reversal on appeal.
Defendant contends that he was entitled to dismissal of the charge of aggravated sexual assault.
Defendant first argues that because "carjacking" is not an expressly enumerated offense in N.J.S.A. 2C:14-2a(3), defendant's sexual assault offense should not have been elevated to first-degree aggravated sexual assault. Defendant adds that criminal statutes are to be strictly construed, citing State v. Sewell, 127 N.J. 133 (1992), as support for that proposition. Second, defendant contends that even if N.J.S.A. 2C:14-2a(3) is construed to apply to carjacking, defendant's conviction should be vacated because the sexual penetration in this case did not occur "during the commission or attempted commission of the carjacking"; the sexual act occurred before the carjacking began. In other words, defendant argues that the State did not prove the elements of an aggravated sexual assault beyond a reasonable doubt.
Whether the unenumerated "carjacking" falls within N.J.S.A. 2C:14-2a(3) is a question of law, and our review is de novo. See Manalapan Realty L.P. v. Tp. Comm'n, 140 N.J. 366, 378 (1995).
The Code of Criminal Justice states that a person is guilty of aggravated sexual assault if the act of sexual penetration is committed "during the commission, or attempted commission, . . . of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape . . . ." N.J.S.A. 2C:14-2a(3). While carjacking is not one of the explicitly enumerated crimes in that section of the Code, robbery is.
Comparing the statutory elements of carjacking with the elements of robbery demonstrates the similarity between the two, and that carjacking is a form of robbery. The elements of robbery are set forth in N.J.S.A. 2C:15-1a:
A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
Both the robbery statute and the sexual assault statute were enacted and became effective in 1979, as part of Title 2C, the newly enacted Code of Criminal Justice. The carjacking statute was not enacted until 1993, fourteen years later.
The elements of carjacking are set forth in N.J.S.A. 2C:15-2a:
A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle, as defined in R.S. 39:1-1, or in an attempt to commit an unlawful taking of a motor vehicle he:
(1) inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle;
(2) threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury;
(3) commits or threatens immediately to commit any crime of the first or second degree; or
(4) operates or causes said vehicle to be operated with the person who was in possession or control or was an occupant of the motor vehicle at the time of the taking remaining in the vehicle.
An act shall be deemed "in the course of committing an unlawful taking of a motor vehicle" if it occurs during an attempt to commit the unlawful taking of a motor vehicle or during an immediate flight after the attempt or commission. [Emphasis added].
We agree with the trial judge and with the State's argument that carjacking is a form of robbery which the Legislature chose to single out for enhanced punishment. In State v. Garretson, 313 N.J. Super. 348 (App. Div.), certif. denied, 156 N.J. 428 (1998), we explained that the carjacking statute created "[a] new kind of robbery that is punishable more severely than robbery under N.J.S.A. 2C:15-1, with the specified added element in the carjacking statute of the taking of a motor vehicle . . . ." Garretson, 313 N.J. Super. at 355.
When we compare the robbery and carjacking statutes, it is apparent that the required elements mirror each other, except that carjacking includes the more specific element that the property taken unlawfully is a motor vehicle. Id. at 356.*fn4 It would be entirely illogical to conclude that the crime of carjacking, a more specific form of the crime of robbery, would not establish the required element of an aggravated sexual assault: one that is committed in the course of a robbery.
Defendant contends that even if carjacking is a form of robbery which could satisfy N.J.S.A. 2C:14-2a(3) and thus establish a first-degree aggravated sexual assault, the evidence at trial does not support the required finding that sexual penetration of the victim was committed "during the commission, or attempted commission" of the carjacking.*fn5 In his charge to the jury with respect to count three, the judge instructed: "An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person during the commission or attempted commission of robbery." He also instructed that "the law defines carjacking as a form of robbery."
The record clearly supports the jury's finding on count 3 that defendant committed an act of penetration, but it does not support the finding that defendant was attempting or in the commission or in flight from commission of the carjacking during the time he was inside the house with the victim of the sexual assault. Irrespective of whether defendant had formed the intention of taking the vehicle before the sexual assault, he had not yet done so. Nor had he taken any "substantial step" toward doing so. See N.J.S.A. 2C:5-1a(3). The driver remained in control of the vehicle until after defendant and the victim of the sexual assault returned to the vehicle.
The question then is whether the record permits us to conclude that the jury found the elements of second-degree sexual assault under N.J.S.A. 2C:14-2c(1), that is, an act of penetration when defendant "use[d] physical force or coercion, but the victim [did] not sustain severe personal injury." There is no question that the evidence supports such a finding; we must be satisfied, however, that the jury actually made that finding, and we are. Second-degree sexual assault, as defined by N.J.S.A. 2C:14-2, requires proof of sexual penetration under one of several circumstances, including the actor's use of "physical force or coercion."*fn6 The jury found defendant guilty on Count 4, charging the separate crime of terroristic threats against Jones, that is, threatening "to commit any crime of violence with the purpose to terrorize . . . ." See N.J.S.A. 2C:12-3. That finding meets the required element of N.J.S.A. 2C:14-2c(1). We therefore exercise our original jurisdiction to modify defendant's conviction on Count 3, which is reduced to second-degree sexual assault, and defendant shall be resentenced accordingly.
Defendant contends that the trial court improperly permitted the State to impeach defendant with his 1996 conviction for fourth-degree aggravated assault. Defendant reasons that the trial court did not "properly balance the lapse of time and the nature of the crime to determine whether its relevance with respect to credibility . . . outweighed the prejudicial effect to the defendant," citing State v. Sands, 76 N.J. 127 (1978). Defendant argues that the 1996 conviction was remote in that it occurred more than "seven years" ago, was not "serious" under Sands, and does not involve a lack of veracity, dishonesty or fraud.
The standard of review requires us to defer to the trial court's ruling on the admissibility of evidence of other crimes, unless that ruling constitutes an abuse of discretion. State v. Erazo, 126 N.J. 112, 131 (1991); see, e.g., Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). "If the probative value of the evidence is outweighed by the threat of prejudice, the evidence should be excluded . . . The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process." State v. Ramseur, 106 N.J. 123, 266 (1987). We disregard trial court errors unless they are "clearly capable of producing an unjust result." R. 2:10-2; Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996) (the appellate court must not interfere unless the lower court "pursue[d] a manifestly unjust course").
The decision to admit evidence of a prior conviction rests "within the sound discretion of the trial judge." Sands, 76 N.J. at 144. This discretion is broad, and the key to exclusion is remoteness. Ibid. The trial judge should consider the passage of time and the nature of the prior convictions, but also may consider whether the defendant has an extensive prior criminal record and the crime for which he is being tried. Id. at 145. If the decision is made to admit evidence of a prior crime that is the same or similar to the crime charged, the trial judge must "sanitize" the admissible evidence and limit cross examination on the prior crime to the degree and the date of the offense, excluding "any evidence of the specific crime of which defendant was convicted." State v. Brunson, 132 N.J. 377, 390-91 (1993).
The State asserts that it is common in New Jersey for courts to find that convictions that are fewer than ten years old are admissible when used for impeachment purposes. State v. Spivey, 179 N.J. 229, 243 (2004) (six years from the date of the prior conviction to the date of the trial did not exceed the permissible threshold); State v. Lagares, 247 N.J. Super. 392, 398 (App. Div. 1991) aff'd in part, rev'd in part on other grounds, 127 N.J. 20 (1992). The State argues that defendant's 1996 conviction is not remote because it occurred just four years prior to charges lodged against him in 2000 for these crimes, and just seven years prior to defendant's trial. The State also argues that Sands does not limit prior convictions used for impeachment to those that involve a lack of veracity, dishonesty or fraud.
Here, the trial judge held a hearing as to the admissibility of defendant's 1996 conviction, and determined it was admissible for impeachment purposes pursuant to Sands. The judge found the conviction serious, not remote, opining that it was a "Graves Act offense for pointing a firearm," that an eighteen-month sentence had been imposed for the crime, and only four years had passed between the conviction and the charge for the current crime. The judge also restricted the use of that conviction under Brunson, because both the prior conviction and current charges involved assault. During cross-examination of defendant, the State properly restricted its use of the prior conviction to the degree and date of the crime. We reject defendant's argument on this issue.
Defendant contends that the State improperly questioned him at trial on his post-arrest silence, in violation of his right to a fair trial. Defendant acknowledges that he did not raise this issue at the trial level, and we address the issue under the plain error standard, that is, to be disregarded unless "clearly capable of producing an unjust result." R. 2:10-2.
Unquestionably, the State may not question a testifying defendant about why he was silent during police questioning. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed. 2d 91, 98 (1976); State v. Deatore, 70 N.J. 100, 115 (1976) (holding that "a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not").
Our review of the trial transcript supports the State's contention that defendant was not questioned in violation of that rule, and defendant's argument is without merit. See R. 2:11-3(e)(2).
Defendant contends generally that his sentences "above the presumptive, including parole disqualifiers, violated [his] constitutional rights to trial by jury and due process of law."*fn7 Defendant's argument invokes Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000); and the New Jersey Supreme Court's 2005 decisions in State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005). Under those cases, a defendant may not be sentenced to a term beyond the maximum that could be imposed based upon the jury's verdict alone, except for the "recidivism" exception. Abdullah, supra, 184 N.J. at 506. The Supreme Court has held that under the Code as enacted, presumptive terms constituted the maximum. Natale, supra, 184 N.J. at 484. In Natale, the Court excised the Code's presumptive terms in order to maintain the sentencing ranges otherwise prescribed. Thus a defendant whose appeal involves a sentence above the presumptive, based upon aggravating factors other than prior convictions, is entitled to a new sentencing proceeding.
The Supreme Court in Natale held that its decision is to apply retroactively to cases then on direct appeal. Natale, supra, 184 N.J. at 494. Defendant's appeal was filed on January 1, 2004, and his sentence on remand shall be governed by Natale.
But Natale does not apply to defendant's sentences for carjacking or kidnapping. The sentencing range for first-degree carjacking, ten to thirty years, is higher than the general range of ten to twenty years for most first-degree crimes, compare N.J.S.A. 2C:15-2b with N.J.S.A. 2C:43-6(a)(1); the sentencing range for first-degree kidnapping, fifteen to thirty years, is also higher than the general range for a first-degree crime, N.J.S.A. 2C:13-1c. Under the Code, however, there is no presumptive term for kidnapping or carjacking. See State v. Bryant, 217 N.J. Super. 72, 84 (App. Div.), certif. denied, 108 N.J. 202, cert. denied, 484 U.S. 978, 108 S.Ct. 490, 98 L.Ed. 2d 488 (1987) (no presumptive sentence for kidnapping); State v. Zadoyan, 290 N.J. Super. 280, 290 (App. Div. 1996) (no presumptive sentence for carjacking). Defendant's sentences for those crimes do not themselves require resentencing under Natale. The only sentence defendant received that requires a remand under Natale is his five-year sentence on Count 4 for third-degree terroristic threats. That sentence exceeds the four-year presumptive term that was in effect at the time, and was based upon more than defendant's prior record. It therefore requires resentencing under Natale.
Defendant's twenty-year sentence for first-degree aggravated sexual assault is moot. As we said in Part II of this opinion, defendant must be resentenced in light of the reduction of his sexual assault conviction to a second-degree crime.
We briefly address defendant's remaining arguments respecting his sentence, as guidance for the court on remand. Defendant correctly notes that aggravating factor 1 may be found only upon a showing that the crime was committed in a matter that is heinous, cruel or depraved. N.J.S.A. 2C:44-1(a)(1); State v. Jarbath, 114 N.J. 394, 404 (1989). However, defendant is incorrect in contending that the trial judge here made no finding related to the seriousness of the offenses. In fact, while the sentencing judge did not expressly use the terms "heinous," "cruel," or "depraved," the judge demonstrated his finding that the crimes fit those descriptions:
I had the opportunity to preside over this trial and there's no question in my mind that what Mr. Drury did here was to subject the victims to a night of terror, a nightmare that they will never forget. He held them in the car for a substantial period of time in an area where they were not familiar in an area which has been described as a high crime area by the witnesses who testified. They didn't know what to do. They didn't know whether or not they would leave with their lives. This terror was especially apparent in the case of Ms. Axner [sic] who was the victim of Mr. Drury's sexual assault . . . Mr. Drury took advantage of his situation. Took advantage to the peril of the people involved.
So long as defendant's new sentence on each crime is within the statutory range, we see no reason to disturb the judge's findings respecting aggravating factor 1.
Likewise, in finding aggravating factor 9, the judge prefaced his finding with a review of defendant's prior conviction history and stated that "[t]here is a very real and very definite need for deterrence."
Finally, defendant contends that the trial judge's decision to impose his carjacking and kidnapping sentences consecutive to his aggravated sexual assault conviction violates the sentencing principles articulated in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), because the offenses here were "interdependent."*fn8 We perceive no merit to defendant's contention. We do note that in Abdullah, the Court found Blakely inapplicable to imposition of consecutive sentences under the State's sentencing standards. Abdullah, supra, 184 N.J. at 512-13. The Court held that sentencing courts have the discretion to impose consecutive sentences when a defendant is convicted of multiple offenses, as long as the sentencing court articulates its reasoning with respect to the Yarbough factors. Id. at 513, 515 (citing Yarbough, 100 N.J. at 643).
Defendant's convictions on Counts 4 through 8 and 10 through 13 are affirmed, defendant's conviction on Count 3 is modified and affirmed as modified, and the case is remanded for resentencing consistent with this opinion.
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text: Cher - Needles and Pins - Bang Bang (My Baby Shot Me Down) • Funk Soul Disco Jazz • Year : 0 • On demand! (album available 128-320kbs)* 0 Label Hide/Show Album Info I'm posting this up for a couple of reasons. First on my previous post by Wynona Carr i had not realized that both tracks were penned by none other than Sonny Bono, who had his hand in both of these tracks as well. Also while i can honestly say that as a kid i did watch the Sonny & Cher show i am not a huge fan. I did have a thing for Cher as a kid though. So that leads me to my next reason for posting. the funny thing about this 45 is that have actually heard cover songs of this before i ever heard these originals. i first heard the Ramones doing needles and pins way back when and i also heard Terry Reid's version of Bang Bang long before i heard this 45. No big deal. i just ran across this while digging in some of my stuff and just thought it would be cool to put it up because of my recent failure to give Mr. Bono proper credit. I guess he was a pretty good song writter but just not a good skier... RIP Mr. Bono. As for the Ramones, well they are the Ramones! and i guess Terry Reid is most famous for NOT taking the lead singer job of Jimmy Page's New Yardbirds. The new Yardbirds soon after became Led Zeppelin. How's that for shoulda, coulda, didn't... The rest is as they say HISTORY...Cher - Bang Bang (My Baby Shot Me Down) #tags The album code is : ODI178894 You may also like ... Cher - The Very Best Of Cher Cher - The ... Sonny & Cher - The Singles+ Sonny & ... Sonny & Cher - The Beat Goes On (The Best Of Sonny & Cher) Sonny & ... Lilac - Bang Bang (1989) Lilac - ... Cher - Greatest Hits vol.1 Cher - ... Cher - The Very Best Of Cher - Greatest Hits 1965-1992 Cher - The


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"Boxing Fanatic" Philippines Local Custom Tip by i-s-a
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January 22, 2006. The latest craze being the fight between Manny "the Pac Man" Pacquiao and Erik Morales. Everybody (as in everybody!) in the country watched the match between these two boxers. People say a planned coup-de-etat was postponed because of this fight! LOL Public transport has come to a still as most jeepney, taxi and tricycle drivers stopped to watch it. The match was also shown in all SM Cinema outlets around the country and it was a block-buster hit! Some lunatics....hmmm I mean fanatics even bet their source of income for this game.
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Since Miami is the mecca of the sun on the east coast, a lot of artist come down here to live large and spent time on the beaches, pools and outside in general.
Lot of people buy this amazing houses with kinds of amenities, like pools, saunas, in front of the ocean, on golf courses, on the bay, lake front properties and everything else.
When it comes to these mansions we are talking about several floor of luxury and exuberant rooms that are fulfilled with so many expensive and imported articles that they sometimes can be mistaken with a museum.
I remember sharing a maintenance contract with a company that specializes in Sectional Rugs cleaning and Drapery cleaning throughout south Florida.
We got together with several general contractor and started figuring out how much they would expend on taking care of the entire interior of these specific mansion. Just on the carpet, draperies and rugs cleaning they were talking north of 5 thousand dollar a month to keep everything clean and spotless.
The reason why other companies don't get such of nice contracts is because they look at the houses and they think they won't the lottery or something and go crazy when estimating cleaning prizes. Another companies that charge and arm and leg are the roof cleaning (pressure cleaning) companies.
On a specific house which was not even a mansion, this friend of mine and his company could take this other contractor that was charging the owner $2,500.00 per visit every time they come around to clean their roof. My friends company gave an estimate for $1800.00 for the same service plus extra perks to the owner and of course he got the contract and the owner is very happy.
When it comes to landscape is when the real money is spent specially when owners of these big mansion want to replicate any roman or Greeks garden with plants that are not even native to Florida.
My friend owns a gardens and patio decoration company with year-round landscaping services and she tells me that it's very difficult not to please these owners when they start asking for trees that they don't even know the names and that for sure are not original to Florida and therefore sometimes they would not even survive on this weather.
The easiest plants to decorate in Miami are the palm trees a coconut tress she says and they can be at a cost of $1,500 per tree very easy. When it comes to furniture it's when things get real expensive especially if the owners are older or from European or middle east countries.
That's when they want to replicate certain styles and want the interior designers to bring furniture from their country of origin and thinks like that.
To summarize when you a big mansion you can have for sure that to keep a home like those it will cost at least 25 grands a month to be able to maintain the way the usually love their places.


text:
Owner of Gilbert dog boarding facility tells their side of the story
Green Acre Dog Boarding has quickly become the scene of a dog owners worst nightmare after a dog chewed through the wires of an air conditioning unit, resulting in the death of 20 dogs.
The destroyed wire allegedly caused the dogs to suffer from heat exhaustion.
MaLeisa Hughes, the owner of the dog boarding home, spoke with Mac & Gaydos to give her side of the story.
Hughes and her family had been on a family vacation in Florida when her daughter and son-in-law, who had been left in charge of the dogs, called to explain the tragedy.
"It's something I don't ever want to hear again, they [Hughes' daughter and son-in-law] were screaming and crying," said Hughes. "They saw dogs already passed away or dogs struggling and the room was about 100 degrees."
Saturday morning Hughes' husband called the dog owners claiming their dogs had run away.
"He told a few people that their dogs had run away and his intention was that he would call them back and spend the time he needed [to explain the situation]," Hughes said.
"That's the one mistake we've made."
Besides their own personal grief Hughes says there is another reason she can't sleep at night.
"All night long I have threats against my life," Hughes said. "I received a phone call threatening that somebody was going to come by and shoot all my children."
Although she understands the grief these owners are feeling, Hughes' dog Patrick passed away in the accident as well, she is shocked by their reactions.
"We went from being the greatest thing that ever happen to their dog to murderers."
Hughes said Green Acre's will be closing their doors.
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text:
For sale by BRIGHTER FUTURE CONSULT VERIFIED 7 Nov 9:31 amTantra Hill, Accra
City: Nanchang
Degree: Master
Major: MBA (2 years)
Intake: 2017 Spring Intake
Deadline: Nov 30th
Original tuition fee: 23000RMB/year
Accommodation fee: 4600RMB/year
Scholarship cover: 25000RMB
Scholarship duration: 1 year's tuition free
Note: Student need to pay tuition first, in the second semester, school will refund 25000rmb to students.
Service fee: 2000USD
Application fee:: 300USD
Requirement: If the students want to apply, they need to pay service fee 1500USD first, the scholarship is confirmed, if he can't pay that much now, we allow them to pay part fee 550USD first, after get offer, then pay rest.
(University will give this student 25000RMB at the second semester of the second year, according to school regulation, they won't mention the scholarship type in the admission notice, if student don't believe you, student may call university directly and you can also show our authorization with Nanchang University to student)
Nanchang University:
Nanchang University is one of the top universities in China and is in the list of "211" national program.Students who graduate from this university can easily find jobs regarding business and management areas. It will take a very short time to process the application and get the JW202 form in a short time (normal application will take one month)
1. The university will give 25000RMB to the students if they are enrolled.
2. Some students will get the money in the first year, some will get the money in the second year.
3. Students will get the money in the second semester either in the first year or the second year.
4. Students will need to pay for the tuition fee of 23000RMB, accommodation fee of 4600RMB and insurance 800RMB together to the university at the day they register in the university.
If you have any questions, please feel free to ask us.
Stay safe!
Watch out for:


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decided: October 4, 1983.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,v.HUGH L. FANT, APPELLANT
Direct Appeal No. 80-1-148, from the Judgments of Sentence Entered June 27, 1980, in the Court of Common Pleas of Fayette County, Criminal Division, No. 1 of 1975; William J. Franks, Judge.
Steve P. Leskinen, Uniontown (court-appointed), for appellant.
Gerald Solomon, Dist. Atty., Samuel J. Davis, Uniontown, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Flaherty, J., files a dissenting opinion in which Roberts, C.j., and Zappala, J., join.
[ 502 Pa. Page 269]
Judgments of Sentence Affirmed.
FLAHERTY, Justice, dissenting.
I dissent. The appellant, Hugh L. Fant, brings this direct appeal from judgments of sentence imposed after convictions by a jury of murder of the third degree and voluntary manslaughter. The charges arose out of the slayings of two persons at a lounge near Uniontown, Pennsylvania.*fn1
Appellant challenges trial counsels' effectiveness for failure to object to portions of the prosecutor's closing remarks. It is clear that a prosecutor must have latitude in arguing that the facts presented at trial and reasonable inferences therefrom establish the guilt of the accused. Notwithstanding the human tendency toward zeal and emotion, however, it is the prosecutor's duty to temper his remarks to enable the jury to dispassionately and objectively evaluate the evidence and render a verdict based on the evidence, not one inspired by vengeance. Those remarks are improper whose unavoidable effect is to prejudice the jury, forming in the
[ 502 Pa. Page 270]
jurors' minds fixed bias and hostility toward the accused, and rendering the jury unable to render a true verdict based on the evidence. Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976).
The remarks complained of appear in context as follows:
That was about 1:30 a.m. The crowd was dispersed. Bruce Fisher apparently felt he had done his job, dispersed the crowd. Nobody got hurt. Nobody got beat up. There was a slap and nothing more. You know, when you think about that slap, [defense counsel] wants to know -- he wanted to know from Martin Urban, did you ask [appellant] if you could slap him? Did you know he had a right not to be slapped? You know he had a first amendment right to use these words, mother this. He had all these rights. What about Bruce Fisher's rights? He had a right to life. What about John Shlosky's rights? What about his constitutional rights? [Defense counsel] wants to know when they read him the rights -- you didn't know he was seventeen years old. You read him these rights, you didn't know if he understands. Nobody read Bruce Fisher his rights. Nobody told him he had a right to an attorney. Nobody told him he had a right to a phone call, the one he tried to make that night. Nobody read him his rights. Nobody read John Shlosky his rights. We didn't get into that. Didn't they have any rights? I submit they did. They at least had the right to life. Forget about the constitutional rights. He had a right to life. . . .
[ 502 Pa. Page 271]
. . . . [T]hat is basically what happened. Smith with the handgun, Fant with the rifle. Mark Collins standing outside, and Jack Rogers with a bottle. Four men, they were judge, they were jurors.
Defense counsel did not object to any of these remarks. The Commonwealth argues counsel's failure to object did not constitute ineffectiveness on the theory that the prosecutor merely argued with zeal and fervor within the bounds of the law. It is clear, however, that the prosecutor continually exceeded the bounds of permissible argument.
Although a prosecutor in a homicide case may properly remind the jury that the victim is dead, argument constituting a reference to the victim which is likely to inflame the passions and prejudices of the jury is not proper. Commonwealth v. Van Cliff, 483 Pa. 576, 583-84, 397 A.2d 1173, 1177
[ 502 Pa. Page 272]
(1979), cert. denied 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979). The prosecutor's reference to the victims' right to life was an appeal to the jury's emotions and a clear attempt to distract the jury from its duty to render a verdict based on the evidence. In Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977), we held a prosecutor's statement in effect referring to the victim's right to life, "[The victim] had no trial like this, without judge, no jury," to be an impermissible attempt to distract the jury from its duty to render a verdict based on the evidence.
Particularly offensive is the prosecutor's appeal to the jury to ignore the Constitution. Such an utterance in a court of law is akin to blasphemy, no matter how intended, or in what context. The Constitution is the essence of the fundamental law of our land against which all actions of the government must be judged and in violation of which any governmental act is null and void. It is the sworn duty of all lawyers in this Commonwealth to uphold and defend the Constitution of the United States and of this Commonwealth. Thus, any appeal to a jury to disregard the Constitution must be deemed improper comment.
Furthermore, as appellant correctly notes, the defense made an issue at trial of the reliability of appellant's statement in view of the fact there had been no interested adult present at the time he was given his Miranda warnings and questioned. The voluntariness of this statement was an issue for the jury's consideration, and the prosecutor's remarks amounted to a plea to the jury to deny appellant his legal rights because someone had denied the victims their right to life. Such an argument is clearly improper.
Likewise, the prosecutor's reference to the victims' "bright future[s]" and to their mothers' suffering at the loss of their sons was improper as an attempt to evoke sympathy for the victims and their families. See, Commonwealth v. Mikesell, 475 Pa. 589, 381 A.2d 430 (1977). The Commonwealth contends this ill-concealed closing plea for sympathy was warranted as a response to a comment made by defense counsel in his opening argument to the jury three days earlier.
[ 502 Pa. Page 273]
Although our cases have excused improper comments when they were made in response to improper closing argument of defense counsel, see, e.g. Commonwealth v. Van Cliff, supra, there can be no justification for a prosecutor's resurrecting comments made at such a remote time as a pretext for an improper comment. Nor has the Commonwealth cited any authority for such justification. Additionally, we note that immediately after defense counsel's opening remark was made, the trial court sua sponte cautioned the jury to base their verdict not on sympathy for appellant, but on the evidence to be presented. Under these circumstances, there can be no justification for the prosecutor's appeal to the sympathies of the jury.
We have stated many times that a prosecutor may not indulge in personal assertions of the accused's guilt, Commonwealth v. Smith, 490 Pa. 380, 387, 416 A.2d 986, 989 (1980) and cases cited therein, and this is so whether there is a bald assertion of the prosecutor's belief or an indirect assertion made by stigmatizing the accused through use of epithets. Commonwealth v. Smith, supra, Commonwealth v. Russell, 456 Pa. 559, 563, 322 A.2d 127, 129-30 (1974). In Commonwealth v. Anderson, 490 Pa. 225, 415 A.2d 887 (1980), we held the prosecutor's characterization of the accused as an "executioner" was an impermissible expression of his belief the accused was guilty, and reaffirmed the Court's reasoning in Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203 (1936):
It is no part of a district attorney's duty, and it is not his right, to stigmatize a defendant. He has a right to argue that the evidence proves the defendant guilty as charged in the indictment, but for the district attorney himself to characterize the defendant as 'a cold-blooded killer' is something quite different. No man on trial for murder can be officially characterized as a murderer or as 'a cold-blooded killer,' until he is adjudged guilty of murder . . . . [Emphasis in original.]
[ 502 Pa. Page 274]
. . . There are no facts in the record warranting any such belief [that Capalla was a cold-blooded killer] on the part of anyone, and even if there were, the first officials who had the right to give expression to that belief were the jurors after the case was committed to their keeping. The application of epithets to a defendant on trial, and expressions of personal belief in a defendant's guilt have no legitimate place in a district attorney's argument. A closing argument can be strong and convincing without them. [Emphasis supplied.]
Id. 490 Pa. at 229-31, 415 A.2d at 889-90. See, also, Code of Professional Responsibility, DR 7-106(C)(4) Trial Conduct:
In appearing in his professional capacity before a tribunal, a lawyer shall not assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
Not content to simply stigmatize appellant as an "executioner," the prosecutor in the instant case also commented on his personal belief in appellant's guilt "beyond all doubt." This Court condemned an assertion of the personal belief of the prosecutor in the accused's guilt in Commonwealth v. Joyner, supra, 469 Pa. at 339, 365 A.2d at 1235-36 (1976), where the prosecutor announced, "It is perfectly clear that this man is guilty, if not more, being a high school graduate, custodian of the grenades, clearly guilty of murder in the first degree." Similarly, in Commonwealth v. Russell, supra, testimony of a former assistant district attorney that the accused was only arrested "when there was no doubt, no doubt whatsoever, that he had masterminded this crime" was held to be an improper, prejudicial expression of personal belief of the accused's guilt.
The prosecutor's argument in this case exceeding the bounds of proper comment in several instances, any reasonable basis for defense counsels' failure to object to these comments is inconceivable. Appellant was denied effective
[ 502 Pa. Page 275]
*fn1 This was appellant's second trial. This Court reversed his first conviction and granted a new trial at Commonwealth v. Fant, 480 Pa. 586, 391 A.2d 1040 (1978); cert. denied 441 U.S. 951, 99 S.Ct. 2180, 60 L.Ed.2d 1056 (1979).
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text:
Clad in white. Only 2.9 pounds. Integrated optical drive. You can swap in an extra battery in place of the optical drive.
Impractical keyboard. Meager performance. Slow hard drive.
The Fujitsu LifeBook P7230 is one of only three sub-3-pound ultraportables to integrate an optical drive, and the only one whose drive is modular.
Fujitsu has consistently pushed the envelope with its ultraportables and preached the importance of integrating optical drives into these tiny units. The Fujitsu LifeBook P7230 ($1,799 list) continues that tradition. It joins the ranks of the Sony VAIO-VGN-TXN15P and the Panasonic Toughbook CF-W5 as the only ultraportable below 3 pounds to integrate optical drives. Fujitsu does a great job of providing useful features. But the trouble with miniaturization is that you can end up sacrificing critical elements. The P7230, which has an undersized keyboard and runs slowly, is no exception.
Fujitsu has historically kept its P7000 series business casual, usually clad in black. This time around, they sent me a white version, a color intended to cater to the consumer crowd. I like the change. The P7230's housing is made of magnesium alloy. Its screen-protecting lid, like that of the Sony VAIO VGN-TXN15P is paper-thin. This makes me a bit nervous about screen protection. I'd recommend securing it with a heavily padded travel bag. In contrast, the semi-rugged Panasonic Toughbook CF-W5's has a thick layer of magnesium alloy protecting its screen. The P7230 weighs only 2.9 pounds, hardly noticeable in a travel bag. The Panasonic weighs exactly the same, and the Sony is lighter by a hair, at 2.8 pounds.
The P7230's keyboard, 92 percent of full size, falls in between Sony's 90 percent and Panasonic's full-size keyboards. Typing with it will take some practice and plenty of patience. It's bearable if you're just composing e-mail or Web surfing. But typing a review, as I did, for example, becomes an arduous task. Your viewing space will seem diminished, too: The P7230's 10.6-inch screen is the smallest of the three (the Sony's screen is 11.1 inches and the Panasonic's is 12.1 inches). Luckily, the brightness of the P7230's screen makes up for its smaller size.
The P7230 joins the Panasonic and Sony ultraportables in an elite group with which you'll never have to carry an external optical drive. The built-in DVD burner gives you the flexibility of burning and accessing files on an optical disc. Best of all, the P7230's optical drive is modular. This means you can swap it out for an extra battery or hard drive. The system also has a FireWire port and two USB ports. The 4-in-1 card reader (SD, xD, MS, MS Pro) eliminates yet another USB external device and is perfect for those who travel with a digital camera. The addition of a TPM module gives business users the ability to encrypt valuable data, and the fingerprint reader provides an alternate means of logging into Microsoft Windows and online accounts. Fujitsu is still reluctant to integrate a cellular modem, mainly because many of its clients aren't demanding it. The Sony and Panasonic ultraportables offer modems from Cingular, Sprint, and Verizon.
The P7230's innards, unfortunately, aren't as powerful as its design. But this limitation (shared by both the CF-W5 and TXN15P) is understandable, given the size and weight constraints. In these super-light systems, you start off with an ultralow-voltage processor, such as the P7230's Intel Core Solo U1400, that's really only good for word processing and Internet work. Such a lightweight processor makes RAM all the more important; at least the P7230 packs a full 1GB worth to offset the requirements of Windows Vista Business. I recommend getting 2GB when you order the system. It'll be worth the added expense once you start amassing various files and applications onto the computer. Hard-drive speed is an issue, too. Systems in this weight class are limited to using a 1.8-inch hard drive, which spins at only 4,200 rpm. The alternative would be a 2.5-inch drive (5,400 rpm), which is found in slightly heavier systems such as the Lenovo ThinkPad X60 (Vista) our Editors' Choice for ultraportables. Last, battery life is your best friend when you outfit your system with low-power components. The P7230's 62-Wh battery got us 3 hours 10 minutes when we ran it down using a DVD. You can add a modular battery that will put you in the 5-hour range. (We got these results by playing a movie continuously until the battery ran down; restricting yourself to lighter applications can extend the battery life.) The system's performance on video-encoding tests and Adobe Photoshop scripts is on a par with the Sony VAIO VGN-TXN15P's. CineBench tests are not applicable because the system does not have a dual-core processor.
Fujitsu has done its best to squeeze as many features as it could into the P7230's 2.9-pound frame. The Fujitsu LifeBook P7230 is less expensive than either the Sony VAIO TXN15P or the Panasonic Toughbook CF-W5. But if I had to choose from among the three it would be the Panasonic, which gives you everything the Fujitsu has, plus a more durable chassis, a bigger screen, cellular modem options, and a full-size keyboard. Those things should be factored into your buying decision.
Benchmark Test Results
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Fujitsu LifeBook P7230's test scores.
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Cisco Cheng is the Lead Analyst of the laptop team at PCMag.com. He's a one-man wrecking crew who tests and writes about anything considered a laptop (yes, even netbooks). He's been with PC Mag for over 10 years and gets occasional headaches from all the technical knowledge he has absorbed during that time. He'd still be snowboarding and playing basketball had he not been through multiple knee surgeries (well, two). Now he spends his time with Google Reader, the iPhone 3G, and his now 3-year...
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text:
Check in from 12h / Check out prior to 12h
Marphe Hotel: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Datca, Turkey.
Boasting a Jacuzzi, a swimming pool and an outdoor pool, Marphe Hotel is situated in Datca and provides comfortable accommodation. It also offers a playground, massage services and 24-hour room service.
Hotel description
Marphe's 26 traditional rooms provide an in-room closet, a telephone and a flat-screen TV, plus all the necessities for an enjoyable stay. All private bathrooms are equipped with a shower.
Marphe Hotel Datca serves a daily breakfast, and has a bar where guests can unwind with a drink. In the evening, guests are invited to relax in the lounge bar.
Hotel features
Room Service, Restaurant, Bar / Lounge, Air Conditioned, Cable / Satellite TV, TV, Billiards, Shower, En suite
24 Hour Reception, Currency Exchange, Multilingual Staff, Safe-Deposit Box, Photocopier, Luggage Storage, Self Laundry
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Nearest hotels
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text: I recently had a bit of trouble with my iPod, so I restored. Now I'm having trouble remembering this one thing I installed off of Cydia that lets you slide your finger across the status bar to bring down a menu that gives you a ton of options. I keep wanting to say it's Mobile Substrate, but I installed that and it doesn't work. I looked in Winterboard and there was nothing to activate there, either. Help please?


text:
Discussion in 'iPod touch 2G Jailbreak: redsn0w, 24kpwn, etc.' started by ryann1993, Feb 3, 2009.
i jailbroke my 2g
now all the music is goneee :|
pls help
Readd it to your itunes library. If it's there, check it to set to sync with your iPod.
i dont get you before jailbreak or after
Is the music still in your itunes library? Then set it to sync with your newly jailbroken touch Please Register or Log in to view images
(And be grateful it worked for you Please Register or Log in to view images)
Please Register or Log in to view images
Of course it's gone. You restored with a different firmware when you jailbreak so it deleted everything. sync it back up with itunes
ohhh okay then i thought that would have like got rid of cydia and sh*t.
Separate names with a comma.