On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication December 24, 1997.
Before Judges Pressler, Conley and Wallace. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
The opinion of the court was delivered by
Following a jury trial, defendant was convicted of two counts of murder, N.J.S.A. 2C:11-3(a)(1) and (2); burglary, N.J.S.A. 2C:18-2; unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and two counts of possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a. These convictions arose from an incident that occurred on November 28, 1992, during which two people were murdered. Two other individuals, Charles Ankrah and Terrence Doe, were also indicted for the same offenses; Ankrah and defendant were tried together. At the time of that trial, Doe had not yet been tried. The same jury that convicted defendant acquitted Ankrah of all charges. At a subsequent trial, Doe was also acquitted of all charges.
Following his convictions, defendant was sentenced on the murder convictions to two consecutive life terms, each with a thirty-year parole disqualifier. Two concurrent four-year terms were imposed on the unlawful weapons possession convictions and a concurrent seven-year term for the burglary conviction was also imposed. The two remaining weapons convictions were merged into the murder convictions.
In the same indictment charging him with the November 28, 1992 murders and other related offenses, defendant was also charged, along with codefendant Doe, with attempted murder and related offenses arising from a November 21, 1992 incident. Following his convictions for the November 28, 1992 murders, defendant entered into a plea agreement regarding the November 21, 1992 charges to two counts of fourth degree aggravated assault and to one count of unlawful possession of a handgun. He received two concurrent 18-month terms without parole eligibility on the aggravated assault convictions and a concurrent five-year term for the weapons possession conviction. These sentences were to run concurrent with the life sentences imposed on the November 28, 1992 murders.
Subsequent to his convictions and sentences, and while his appeal therefrom was pending, defendant became aware that the main identification witness against him, John Smith, *fn1 who was eleven years old at the time of the murders, had a history of psychiatric problems. At that point, Doe was awaiting trial for his role in the November 28 events and a hearing was held to determine when John, who was then hospitalized, might be available to testify. Based on his treating doctor's testimony, the Judge postponed the Doe trial for another sixty days. Subsequent to this hearing, the voluminous medical records detailing John's condition were provided by the prosecutor to defendant's appellate counsel.
On defendant's subsequent motions, we permitted the supplementation of the record with a July 5, 1995 transcript of the proceeding in the Doe trial regarding the then ability of John to testify, the discovered medical reports, and further ordered a limited remand for a hearing to determine whether the new evidence constituted grounds for a new trial. Thereafter, we entered an order expanding the scope of the remand to include a Wade hearing in light of the new evidence and to include in the record a December 8, 1995 transcript from the Doe trial containing evidence regarding the identification. Additional portions of the Doe trial were also considered by the trial Judge on remand, along with the testimony of medical experts, John, and an Essex County Prosecutor's Investigator who had participated in the murder investigation. Ultimately the trial Judge rejected defendant's Wade *fn2 contentions, and denied his motion for a new trial based upon the "newly discovered" evidence relating to John.
In his original brief, defendant contends:
DEFENDANT'S CONVICTIONS MUST BE REVERSED AND THE CASE REMANDED FOR A NEW TRIAL, BEFORE WHICH AN EVIDENTIARY HEARING IS HELD TO DETERMINE WHETHER JOHN SMITH, THE ONLY EYEWITNESS AGAINST DEFENDANT, IS COMPETENT TO TESTIFY, AND IF SO, TO WHAT EXTENT THE DEFENSE WILL BE PERMITTED TO USE HIS PAST PSYCHIATRIC HISTORY TO IMPEACH HIS CREDIBILITY.
THE COURT'S FAILURE TO DECLARE A MISTRIAL WHEN THE JURY COULD NOT REACH A VERDICT WAS REVERSIBLE ERROR IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., ART. 1, PAR. 10.
POINT III. THE COURT'S FAILURE TO DISMISS COUNT FOURTEEN UNFAIRLY PREJUDICED DEFENDANT SINCE, CONTRARY TO THE EVIDENCE ADDUCED AT TRIAL THAT ANKRAH ALONE FIRED THE WEAPON, THE CHARGE AGAINST DEFENDANT AND NOT ANKRAH INDICATED TO THE JURY THAT THERE WAS A REASON UNKNOWN TO IT BUT KNOWN TO THE PROSECUTION WHY DEFENDANT AND NOT THE CO-DEFENDANT WAS CHARGED WITH UNLICENSED POSSESSION OF THE 9 MILLIMETER WEAPON.
THE TRIAL JUDGE'S REFUSAL TO INSTRUCT THE JURY ON THE FULL PANOPLY OF LESSER-INCLUDED OFFENSES SUPPORTED BY THE EVIDENCE, AND TO CHARGE THE ACCOMPLICE INSTRUCTION TO WHICH THE LESSER CRIMES GAVE RISE UNDER STATE V. BIELKIEWICZ, DEPRIVED THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS. (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST. (1947), ART. 1, PAR. 10).
THE SENTENCE OF THE COURT IS MANIFESTLY EXCESSIVE.
In his supplemental brief filed following the trial Judge's decision on remand, defendant contends:
THE NEWLY DISCOVERED EVIDENCE OF JOHN SMITH'S MULTIPLE AND SEVERE PSYCHIATRIC DISORDERS WARRANTS A NEW TRIAL.
THE REMAND COURT ERRED IN PROHIBITING DEFENDANT FROM ASKING JOHN SMITH, AT THE WADE HEARING, ABOUT THE RELIABILITY OF HIS PERCEPTIONS AND MEMORY AND ERRED IN FAILING TO EXCLUDE THE CHILD'S PRETRIAL AND IN-COURT IDENTIFICATIONS OF DEFENDANT AS UNRELIABLE.
Finally, in a second supplemental brief filed pursuant to our order granting defendant leave to appeal, nunc pro tunc, his guilty plea to the November 21, 1992 charges, defendant contends:
DEFENDANT'S CONVICTIONS MUST BE VACATED BECAUSE HE DID NOT PROVIDE AN ADEQUATE FACTUAL BASIS FOR CONVICTION OF ANY OF THE COUNTS TO WHICH HE PLED GUILTY.
DEFENDANT'S CONVICTIONS MUST BE VACATED BECAUSE THE COURT DID NOT ADEQUATELY ADVISE HIM OF THE CONSEQUENCES OF ENTERING THE PLEA.
We have carefully considered all of these contentions in light of the entire record and applicable law. We are convinced point I of defendant's first supplemental brief requires a reversal of the trial Judge's denial of defendant's new trial motion premised upon the newly discovered evidence and point I of defendant's second supplemental brief requires a vacation of his guilty plea to the November 21, 1992 charges and a reinstatement of the original charges. That determination renders moot points I, II, IV and V of defendant's original brief and point II of his second supplemental brief. Point III of the original brief and point II of the first supplemental brief are without merit and require no further opinion. R. 2:11-3(e)(2). We add only as to point IV of the original brief that while we would not lightly dispose of defendant's Bielkiewicz *fn3 accomplice liability contention, we decline to consider the issue as it arose in the first trial particularly since a Bielkiewicz charge was not requested. Upon new trial, should defendant request such a charge, we assume the trial Judge will fairly consider the request in light of the current decisional law. See, e.g., State v. Jackmon, ] N.J. Super. ] (App. Div. 1997).
During the trial, the jury heard the following evidence. On November 28, 1992, at about 6:30 p.m., two men jumped out of a red car and, with one of these men shooting a 9-millimeter gun, chased two other men, who were returning to their townhouse located on Bergen Street in Newark. Clarence Black, the only adult eyewitness, was at the gate to his apartment on Bergen Street at the time. He heard the car make a loud screeching noise as it made an abrupt U-turn at a high rate of speed, and saw the two men carrying guns jump out of the car, shooting at the victims. Black recognized one of the assailants, Ankrah, as someone he had previously seen in the neighborhood. Black ran inside his own home where he continued to observe the scene from his bedroom window on the second floor, hearing more shots coming from the house.
Among the people in the townhouse were John Smith, then twelve years old, and Quasim Clark, also then twelve years old. John testified that he lived with his grandmother at the house along with the two victims, who were his uncles, and other family members. Just before the shootings, he and his cousin Quasim were in the living room at the entrance of the house when their ...