On appeal from the Superior Court of New Jersey, Law Division, Essex County.
O'Brien, Havey and Conley. The opinion of the court was delivered by Conley, J.s.c. (temporarily assigned).
The opinion by the court was delivered by
CONLEY, J.S.C. (temporarily assigned).
Tried by a jury, defendant*fn1 was convicted of conspiracy to commit robbery in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count 1); attempted armed robbery in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (Count 2); felony murder in violation of N.J.S.A. 2C:11-3a(3) (Count 3); aggravated assault upon Vonzell Johnson in violation of N.J.S.A. 2C:12-1b(1) (Count 5); possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5b (Count 6); possession of a rifle without a purchaser identification card in violation of N.J.S.A. 2C:39-5c(1) (Count 7), and possession of firearms for an unlawful purpose in violation of N.J.S.A. 2C:39-4a (Count 8). Count 4 charged defendant with knowing or purposeful murder of Rodney Holman in violation of N.J.S.A. 2C:11-3a(1), (2). Defendant was acquitted on that offense, but convicted of the lesser included offense of aggravated manslaughter in violation of N.J.S.A. 2C:11-4a. Defendant was sentenced to life imprisonment with a 30 years parole disqualification on Count 3 (felony murder). He was sentenced to a consecutive term of 10 years with 5 years parole disqualification on Count 5 (aggravated
assault). He was sentenced to concurrent 5 year terms on Counts 6 and 7. All other counts were merged. Violent Crimes Compensation Board penalties totaling $120.00 were also imposed.
The convictions arose from what the State alleged was a planned armed robbery for drugs which turned into a shooting, resulting in the death of Rodney Holman and the assault upon Vonzell Johnson. The principal witnesses to testify for the State were Vonzell Johnson, the victim of the aggravated assault charge, and Robert Canada, an eye-witness. Johnson, previously convicted twice of drug offenses, testified that on August 30, 1988 at about 2:30 a.m., he and his friend Rodney Holman were sitting on a bench in a park on 4th Avenue in East Orange. He had just bought a quart of beer. They were approached by three "guys" they did not know who asked if Johnson and Holman had drugs. One was wearing a red undershirt (defendant), another a white sweatsuit (co-defendant Rush) and the third was wearing a blue sweatsuit (co-defendant McKenzie). Holman told them, "we don't sell drugs, go up the street, ask somebody up the street." The three men then walked away.
Johnson and Holman walked toward Ampere Parkway and 4th Avenue where they saw Robert Canada, a friend of Johnson, coming around the corner in a gold Camaro. Canada parked his car across the street and he and Johnson had just begun to talk when a burgundy Toyota pickup truck pulled up. The same three men Johnson and Holman had seen in the park were now in the pickup truck. The one wearing the red undershirt was driving, the one wearing the white sweatsuit was the right front passenger and the one wearing the blue sweatsuit sat in the middle.
One of the three men said that someone around the corner told them Johnson and Holman did have drugs. During the trial, Johnson was initially not sure which one had said this, he finally said it was the man wearing the white sweatsuit; in his
statement to the police, however, he had said it was the man wearing the blue sweatsuit. The man wearing the white sweatsuit got out of the truck from the passenger's seat, followed by the man wearing the blue sweatsuit. Johnson saw that the man in the blue sweatsuit had a small gun with a clip on it and told Holman to run. He also testified he saw the man wearing the white sweatsuit holding a big gun up in the air. In his statement to the police, however, he had said the only person he saw with a gun was the man wearing the blue sweatsuit. Johnson himself then ran away in a zig-zag pattern, and Holman ran in another direction. Johnson testified he heard shots fired at him by the man wearing the blue sweatsuit with the small gun and then he heard a louder shot. However, immediately after the shooting Johnson had said the man wearing the blue sweatsuit had fired only one shot at him. As Johnson got across the street, the truck was pulling off and Holman was laying on the ground. Holman died shortly thereafter of a gun shot wound in the back.
When a patrol car came by a few seconds after the shooting, Johnson flagged it down and described the three assailants, the truck, and in which the direction it left. He described the truck as a brown Toyota. The descriptions were dispatched over the police radio and shortly thereafter Johnson was told a truck fitting the description had been stopped in Newark and they had three men fitting the descriptions. Johnson was driven to where the truck had been stopped about 15 to 20 minutes away. Johnson observed three individuals in a patrol car and identified them as the three assailants. During trial, however, he was not able to identify either defendant or co-defendant Rush.
Robert Canada, also previously convicted twice for possession of drugs, was a witness to the shooting. Contrary to Johnson's testimony, he said he had walked to the area of the shooting incident where he had earlier seen co-defendant Rush, who was wearing a white sweatsuit. At some point later, he saw Vonzell Johnson and Rodney Holman, both of whom he knew, on the corner of Ampere Parkway and Whitney Place. After
speaking briefly to Johnson and Holman, Canada proceeded toward 33 Ampere Parkway. From that location, which he said was about 75 feet away, he saw a red or burgundy pickup truck turn into the intersection.
Contradicting somewhat Johnson's version of what occurred, Canada said he then saw a "verbal altercation" between Johnson, Holman and the man wearing the white sweatsuit whom he had seen earlier. The altercation was "loud . . . yelling, shouting" at each other. Johnson finally shouted that "he didn't have anything" and "run." Johnson ran in a zig-zag pattern across Ampere Parkway; as Johnson was running Canada saw blue flames, heard three shots and saw the man wearing the white sweatsuit shooting from a small shiny gun. Canada turned and began to run, too; as he did he heard a "boom from a larger caliber gun; had to be." He said a third man, who was not then present in court, was outside of the truck; the driver remained inside.
When he heard "radio cars," Canada returned to the scene of the shooting and gave his descriptions. After the Toyota was stopped, Canada left with the police to make a possible identification. He identified the pickup truck, and one of the defendants (Rush). However, he admitted it was about 75 feet from where he was standing at 33 Ampere to where Johnson and Holman were standing and in his original signed statement to the police, Canada stated he had been unable to identify any of the suspects (except by clothing) because he had been too far away. Canada acknowledged being very near-sighted, but stated he was wearing his contact lenses the night of the shooting, however he admitted during his testimony that he could not fully read signs in the courtroom 40 feet away. On re-direct, he identified Grant as the driver of the pickup, although he had never so identified him before. Finally, during his trial testimony he denied hearing a police radio dispatch that the suspects had been picked up; in a prior proceeding he had said he did hear such a transmission on his way to make an identification.
Eric Scotland testified he lent Carl Grant his Toyota truck the night in question. There was only a power drill and "cable tools" in the truck then. However when the truck was stopped in response to the "general alarm dispatch," the Newark police removed an M-1 sawed-off carbine rifle from behind the seat, with 27 live rounds in the magazine, but none in the chamber. A Taurus .357 magnum and a .25 caliber Raven pistol were also recovered from the truck. The .357 was fully loaded, and the .25 had two live rounds: one in the chamber, one in the magazine. A black pouch containing 24 live rounds of both .38 and .357 caliber. The driver of the truck was wearing a red T-shirt, and the first passenger to exit the truck was wearing a white terry sweatsuit. Defendants Grant and Rush were identified as those two individuals.
A ballistics expert testified that a .38 caliber cartridge can be fired from a .357 caliber gun. This expert indicated the bullet removed from Holman's body had the same "lands and grooves" and right-hand twist as a test bullet fired from the Taurus magnum .357. However, a certain identification could not be made. Comparisons between two casings found at the scene of the shooting and those resulting from test-firing the Raven .25 pistol indicated common class characteristics of the Raven, but a positive identification was not possible.
The primary defense was misidentification. In this respect, Dr. Sannito, an expert in the field of memory and recall, testified for defense. He described short term memory, and how a witness to a crime could keep in short term memory four or five details, or seven at the most, and even then only through constant, focused rehearsal of those details. Long term memory can be maintained through several methods. One of the methods is time-consuming "rote" memorization. Another is "coding" or storing information under a label or classification, though this type of memory can lead to error because when "code" memory is recalled it is apt to resurface with incorrect information the individual associates with the code or label. The third method is images or visual perceptions which
can be affected by: a) exaggeration of details of perceived significance; b) deletion of details perceived to be insignificant, and c) assimilation of what was actually perceived with stereotypes in order to "make it fit". Moreover, under stress or fear, "tunnel vision" occurs, and a person's perception narrows to the immediate danger. Dr. Sannito indicated with "tunnel vision" one might focus on a gun itself and other details would become "fuzzy". He also indicated that memory and recall are disrupted generally by stress. He said people tend to see what they expect to see, and that the questioning process after the fact could affect perceptions. He described recall as a creative process involving decision-making and stated that the longer one's exposure to an object the greater the recall potential. However, the greater the stress of the situation the poorer one's recall would be. According to Dr. Sannito, there was no demonstrated correlation between certainty expressed by an observer and that observer's accuracy of identification.
The defense also presented Jerome Williams who was in the area at the time of the shooting. Mr. Williams testified that a red car, one he recognized from earlier in the evening then driven by "Red Barrett," drove by as Johnson and Holman turned the corner from Whitney onto Ampere. It was at that point he said he heard shots. Williams stated Rush and Grant were "by the parking lot, they weren't near the corner yet," indicating they were visible but not involved in the shooting.
Although defendant did not testify, co-defendant Rush did. He said he had walked McKenzie to the bus stop at about 1:25 a.m., and was waiting several minutes when Carl Grant pulled up in the pickup truck. Grant drove off, but returned 15 minutes later. Rush and McKenzie got into the truck and went to buy 'weed' for Grant and then drop off McKenzie. He denied knowing there were weapons in the truck. Grant eventually parked the truck "by the circle on Whitney." The truck was there for about 15 minutes before defendants ...