On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication March 21, 1995.
Before Judges Brody and P.g. Levy. The opinion of the court was delivered by Brody, P.j.a.d.
The opinion of the court was delivered by: Brody
Following a jury trial, defendant was convicted of first-degree murder, a violation of N.J.S.A. 2C:11-3a(1) or -3a(2), and first-degree attempted murder, a violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1. The Judge imposed concurrent prison terms: life imprisonment for the murder, thirty years to be served before parole eligibility, and eighteen years for the attempted murder, six years to be served before parole eligibility. The jury also found defendant guilty of assault and weapon crimes, which the Judge dismissed through merger.
Both crimes were committed with a shotgun in a single episode. The victim of the murder was Locksley Anderson, who was having an affair with Nadirah Pasha, defendant's sister-in-law and the victim of the attempted murder. The night before these crimes were committed Anderson and defendant's brother Salim, Nadirah's husband, had engaged in a violent fight over the affair. In the course of the fight, Anderson wounded Salim in the arm with a machete.
Although one might expect that defendant's defense would have suggested that Salim had committed the crimes, instead defendant's trial attorney argued in his summation that because Anderson had been engaged in criminal activities he was the victim of an organized crime execution. Defendant's attorney had represented Salim in the early stages of the police investigation of these crimes. In his pro se brief, defendant argues persuasively that he was prejudiced by what appears to be the attorney's conflicting interests. We need not explore the point, however, because we are satisfied that the erroneous admission of prejudicial evidence requires a reversal of these convictions.
The only direct evidence of defendant's guilt was the testimony of Nadirah. She described how, on the night of the shootings, defendant shot and killed Anderson in the driveway of her mother's home and then shot at her and missed. Anderson had just driven her there from a tavern. Nadirah and the young child of the marriage were living with her mother, allegedly because Salim's domestic violence forced her to leave him. The State argued that defendant committed the crimes to avenge his brother.
Defendant's alibi defense was presented through his testimony and the testimony of three witnesses.
The inadmissible evidence was the State's rebuttal testimony of Carrie Boatwright, Nadirah's mother. The gist of her testimony was that on the day after the crimes Salim telephoned her and stated that defendant had done the shooting. In his earlier testimony as a defense witness, Salim had denied on cross-examination that he had made such a telephone call. He testified that he did not know who had done the shooting. The Judge erroneously ruled that Boatwright's rebuttal testimony of Salim's telephone statement was admissible because it was inconsistent with his testimony that he had never made such a call.
The matter was initiated with a leading question put to Salim by the assistant prosecutor on cross-examination:
Q Did you tell Mrs. Boatwright that you didn't think your brother would go that far to shoot and kill someone?
Q Did you call Mrs. Boatwright on the phone the morning after the shooting or the Saturday after the shooting and tell her that you know that [defendant] followed your wife and this man ...