On Appeal from Superior Court, Law Division, Essex County.
King and Deighan. The opinion of the court was delivered by Deighan, J.A.D.
[216 NJSuper Page 596] Defendant Leander Wayne Johnson appeals from a jury conviction of second degree aggravated assault contrary to N.J.S.A. 2C:12-1b(1) (count one); third degree aggravated assault contrary to N.J.S.A. 2C:12-1b(2) (count two); possession of a handgun without a permit contrary to N.J.S.A. 2C:39-5b (count three); possession of a handgun for an unlawful purpose contrary to N.J.S.A. 2C:39-4a (count four); and possession of a handgun by a previously convicted felon contrary to N.J.S.A. 2C:39-7 (count five). Count five was severed for the purposes of trial. The State's motion for an extended term as a persistent offender pursuant to N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3 was granted. On count one defendant was sentenced to a term of 15 years with seven and one-half years parole ineligibility. Counts two and four were merged with count one for sentencing and on count three he was sentenced to a consecutive term
of four years. Both sentences were imposed consecutive to any sentence imposed for parole violation. A $125 Violent Crimes Compensation Board Penalty was also imposed.
The following facts developed during trial. On the evening of June 9, 1983, Aoran Green, a security worker for the Newark Housing Authority, went to meet a friend at 212 Prince Street in Newark. His friend was not there, and at approximately 10:30 p.m., he started to leave the apartment building when he encountered four men on the stairway. One of the men was defendant Leander Johnson and another, whom Green recognized as a former school mate, was Michael Jackson. Although he did not know the defendant's name, Green recognized him because he had gone to grammar school with defendant and had seen him around the projects. Green did not recognize the other two men. When Jackson greeted Green and called him by name, a person other than the defendant, started arguing with Green about having sent detectives to his girl friend's house. The argument ended when one of the men suggested that they all forget about it. Green then left the building alone and proceeded to his automobile.
As Green approached his car he began talking to an acquaintance, Marshal Boulers, and, while conversing with Boulers, he put some articles in the trunk of his car. When Green turned around defendant was standing in front of him. As the man who had argued with Green about his girl friend approached, defendant stepped back and fired a shot at Green's kneecap. The second man then said, "I'm going to kill him" and also fired a shot. After being shot Green apparently fell to his knees and "started crawling into the car." The other men fled, because, according to Green, "they thought I was going under the seat to get a gun." Green got into his car and drove to police headquarters where he gave the police a description of his assailants. Green was then taken to a hospital where he remained for 10-12 days. On June 12, two days after the shooting and while still in the hospital, Green reviewed several
books of photographs brought to him by the police and selected defendant's photo as the assailant.
On June 25, Green was in Bamberger's in Newark talking with two detectives from the Newark Police Department who worked there as part-time security officers. Defendant by happenstance walked into the store; Green immediately identified him and the officers arrested the defendant. Defendant told the detectives that he did not know Green and when asked his name gave the officers a false name.
At trial defendant testified that he spent the entire evening of June 9, 1983 with his girl friend, Carolyn Freeman. Both Ms. Freeman and her mother confirmed that defendant was at their home on the evening of the shooting. Defendant testified that he had known Green all of his life because they had gone to grammar school together. He also testified that Green and another man had recently accosted him, searched him, handcuffed him, drove him around the block and then let him go. Defendant stated that on that occasion harsh words were exchanged. He indicated that this episode occurred in June, but did not give the year.
Other facts developed at trial will be discussed under the appropriate issue.
On appeal defendant contends: (1) that hearsay statements from the argument and descriptions of the attackers given by the victim should not have been admitted; (2) that the State improperly bolstered the credibility of the victim and attacked the credibility of the other eyewitness and defendant; (3) that comments of the prosecutor during summation were improper, and (4) that defendant was denied effective assistance of counsel.
We disagree with defendant's contentions and we affirm.
Defendant contends that the trial court erred when it admitted prejudicial hearsay, which was not objected to, on two
separate instances. The first alleged hearsay involved statements by a third party that led to the argument in the stairway just prior to the assault and the second instance of hearsay involved identification statements by Green to the investigating officer.
Since no objection to either out-of-court statement was raised at trial, any error will not be grounds for reversal unless it is clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon at 336; State v. Melvin, 65 N.J. 1, 18-19 (1974). We find that there was no plain error, nor do we find any merit to either of defendant's contentions concerning these two hearsay issues.
First, defendant complains about the following testimony by Green prior to the assault:
Q. Now what took place on the staircase?
A. Well, the guy, Michael Jackson, he said, "How you doing, Aoran?".
Q. Michael was one of these four people?
Q. Then the other guy said, he said, "Is that Aoran Green?", so he said, "Yes.". So he said, "Why did you bring detectives to my girl friend's house?".
A. The other defendant that's not in court yet.
Defendant argues that the statements made by a third person violated the hearsay rule and defendant's right to confrontation. Defendant asserts that the evidence was harmful because it suggested a motive for the shooting. The State responds that: (1) no objection was made at trial; (2) the statement was not hearsay because it was not offered to prove the truth of the assertion; (3) the statement did not inculpate defendant; (4) the Confrontation Clause does not exclude all hearsay, and (5) if it
was hearsay, it was admissible under Evid.R. 63(9) as a statement by a coconspirator.
An out-of-court statement is inadmissible as hearsay if it is "offered to prove the truth of the matter stated." Evid.R. 63. Here, the statement was not "offered to prove the truth of the matter stated" and therefore was not hearsay. It was offered to establish the fact that an argument had occurred in the stairway prior to the shooting. There was no violation of the hearsay rule because the truthfulness of the statement was not at issue. See State v. Davis, 50 N.J. 16, 28-29 (1967), cert. den. 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852; State v. Smith, 113 N.J. Super. 120, 138 (App.Div.1971), certif. den. 59 N.J. 293 (1971). The statement was non-accusatory and did not implicate defendant in the argument or the subsequent crime. See State v. McKiver, 199 N.J. Super. 542, 548 (App.Div.1985). Moreover, if Green had merely testified that there was an argument on the stairway without a recital of the context of the conversation, his statement would have been admissible. The statements were made merely to establish that there was a discussion between Green and another person concerning another incident. We find no error in the admission of the statements by a third party that led to an argument in the hallway just prior to the assault. In view of our determination it is unnecessary to pass upon the remaining responses by the State to this issue.
Defendant also raises as an issue the admission of testimony by Detective Pallaro that Green gave police a detailed description of the two individuals who shot him and that he knew one of the individuals. Defendant points out that similar statements were also made by Detective Lytwym. He asserts that the testimony by these two officers violates the hearsay rule stated in State v. Bankston, 63 N.J. 263 (1973). The State answers that Pallaro's testimony "was the result of [his] normal
business activity" and was inherently trustworthy. The State also incorrectly asserts that the statement is not hearsay because Green testified at trial.
Detective Pallaro, who questioned Green at the police station as he waited for an ambulance, testified that Green gave him descriptions of the two men and told him that he knew one of them. At trial Pallaro recounted the descriptions that Green had given to him. Lytwym, who was with Green in Bamberger's when the defendant was arrested, testified that Green pointed to defendant and said, "There's the man who shot me."
Initially, Bankston is not applicable under the circumstances of this case. Bankston and its progeny involved situations where police are required to explain why they approached a suspect. 63 N.J. at 268. The cases all involved tips by anonymous informers. See State v. Douglas, 204 N.J. Super. 265, 273 (App.Div.1985), certif. den. 102 N.J. 378 (1985); State v. Thomas, 168 N.J. Super. 10, 15 (App.Div.1979); State v. Long, 137 N.J. Super. 124, 133 (App.Div.1975), certif. den. 70 ...