On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication February 7, 1996.
Before Judges A.m. Stein, Kestin and Cuff. The opinion of the court was delivered by Cuff, J.A.D.
The opinion of the court was delivered by: Cuff
The opinion of the court was delivered by CUFF, J.A.D.
This case involves the murder of the alleged thief of a young man's marijuana stash. In retaliation, the owner of the drugs with two companions kicked in the thief's door, knocked him to the ground and shot him. He died the next day. These appeals, calendared separately, are consolidated for the purposes of this opinion.
Defendant Wade Johnson was convicted of conspiracy to commit murder in violation of N.J.S.A. 2C:5-2 and 2C:11-3a; knowing or purposeful murder in violation of N.J.S.A. 2C:11-3a; unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5b; and possession of a handgun for an unlawful purpose in violation of N.J.S.A. 2C:39-4a. At sentencing, the conspiracy and possession of a handgun for an unlawful purpose charges were merged with the murder conviction on which Wade Johnson was sentenced to life imprisonment with a thirty-year period of parole ineligibility. A concurrent term of five years was imposed for unlawful possession of a handgun. A $1,500 fine and a $285 VCCB penalty were also imposed.
Defendant Kyle Johnson was convicted of conspiracy to commit murder in violation of N.J.S.A. 2C:5-2 and 2C:11-3a(1)(2); aggravated manslaughter in violation of N.J.S.A. 2C:11-4; unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5b; and possession of a handgun for an unlawful purpose in violation of N.J.S.A. 2C:39-4a. Once again, the conspiracy and possession of a handgun for an unlawful purpose merged with the aggravated manslaughter conviction on which he was sentenced to a twenty-five-year term of imprisonment with a twelve-year period of parole ineligibility. For unlawful possession of a handgun, Kyle Johnson was sentenced to a concurrent term of four years in prison. A $500 fine and a $185 VCCB penalty were also imposed.
In April 1992, Charles Cozart, the victim, resided at 11 Ampere Plaza in East Orange. On April 21, 1992, a juvenile, T.A.M., known as Ears and Big Ears in the neighborhood, discovered that his stash of marijuana was missing. He was told by neighborhood children that his stash had been stolen by Cozart, also known as Salaam. T.A.M. encountered D.S. and related that his stash had been taken by Cozart. D.S. then entered 11 Ampere Plaza, a four-story apartment building. T.A.M. followed and asked D.S. where Salaam lived. D.S. told him and T.A.M. left.
Outside the building, T.A.M. met defendant Kyle Johnson. When told by T.A.M. what Cozart had done, Kyle said Cozart "can't be doing that." Apparently sensing that this might be an opportune time to collect money owed to him by Cozart, Kyle Johnson expressed an intention to accompany T.A.M. when he confronted Cozart. Nevertheless, according to D.S., T.A.M. re-entered the building and proceeded to the door of Cozart's apartment. Soon thereafter, T.A.M. was joined by Kyle Johnson, his brother Wade Johnson, and Rodney or Rockman "Rock" King. *fn1 According to D.S., Kyle Johnson kicked open the door, and he saw defendant Wade Johnson carrying a gun. T.A.M. punched Cozart, who fell to the ground. Defendant Wade Johnson fired at least three shots at Cozart as he lay on the floor. Before he died, Cozart identified T.A.M. as the person who punched him and knocked him to the ground. He also stated that T.A.M. had not shot him. Gina Bell, a woman visiting Cozart, confirmed that T.A.M. had not shot Cozart.
According to T.A.M., after he punched Cozart several times, he started to walk down the stairs. When he heard the shots, he started to run and ran out the back door bumping into Evelyn Margaret Whiting, a local crossing guard and a resident of the building. She testified that as she entered the building, she heard a woman screaming and then she heard three gunshots. Then she saw three men run down the stairs and out the back door. One of these men was identified by Whiting as T.A.M.
Another bystander, Rhonda Thomas, testified that she heard shots and then saw Wade and Kyle Johnson run out of the back door accompanied by T.A.M. After his arrest, T.A.M. implicated both Kyle and Wade Johnson.
Wade Johnson was further tied to the incident by Herbert Wilcher. He testified that he had been incarcerated at the Essex County jail and in September 1992 was placed in the medical ward with Wade Johnson. The men were not strangers. During their stay in the medical ward, Wilcher testified that Wade Johnson asked him to "take care of a fella" when he was released from prison. He was told to contact Kyle Johnson on his release, and he was told that T.A.M. was the intended victim. Wilcher also testified that Wade Johnson told him that T.A.M. was an eyewitness to a crime that he had committed.
On appeal, defendant Wade Johnson presents the following arguments:
IMPROPER USE OF THE GRAND JURY BY THE PROSECUTOR'S OFFICE WARRANTS REVERSAL OF DEFENDANT'S CONVICTION.
A. The Prosecutor's Office Engaged In Improper Tactics In Obtaining Rhonda Thomas's Testimony Before The Grand Jury.
B. The Conduct Of The Prosecutor's Office In Compelling Rhonda Thomas's Grand Jury and Trial Testimony Was So Egregious As To Deny Defendant His Constitutional Right To A Fair Trial.
THE COURT ERRED IN PERMITTING THE GRAND JURY TESTIMONY OF RHONDA THOMAS AS A PRIOR INCONSISTENT STATEMENT PURSUANT TO EVIDENCE RULE 63(1)(a)(I).
PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10).
THE TRIAL COURT'S INSTRUCTION TO THE JURY ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS INADEQUATE AND MISLEADING IN ITS FAILURE TO CHARGE A SPECIFIC UNLAWFUL PURPOSE. (Not Raised Below).
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO GIVE A LIMITING INSTRUCTION ON THE PROPER USE OF EVIDENCE ADMITTED TO SHOW CONSCIOUSNESS OF GUILT. (Not Raised Below).
In a pro se supplemental brief, defendant Wade Johnson raises the following point:
THE ADMISSIONS OF THE WRITINGS WITHOUT BEING AUTHENTICATED DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL.
Defendant Kyle Johnson raises the ...