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State v. Alston

May 29, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERRON ALSTON, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
REGINALD DAVIS, DEFENDANT-APPELLANT.



Before Judges Petrella, Skillman and Steinberg

The opinion of the court was delivered by: Steinberg, J.s.c., T/a

[9]    Argued March 23, 1998

On appeal from the Superior Court of New Jersey, Law Division, Essex County.

An Essex County Grand Jury jointly charged each defendant, in a four-count indictment, with having committed the following offenses in Newark, New Jersey on January 6, 1995: (1) conspiracy to commit murder, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, (Count One); (2) purposeful or knowing murder of Paul Magliaro by their own conduct, in violation of N.J.S.A. 2C:11-3a(1)-(2), (Count Two); (3) possession of a firearm, a handgun, without a permit to carry, in violation of N.J.S.A. 2C:39-5b, (Count Three); and (4) possession of a firearm, a handgun, with a purpose to use against the person or property of another, in violation of N.J.S.A. 2C:39-4a, (Count Four).

At the time of the offense Reginald Davis was a juvenile. However, after a hearing, a Judge assigned to the Superior Court, Chancery Division, Family Part, referred the case to the Law Division for further prosecution pursuant to N.J.S.A. 2A:4A-26. A jury found both defendants not guilty of conspiracy on Count One, guilty of aggravated manslaughter, as a lesser-included offense on Count Two, and guilty of the weapons offenses on Counts Three and Four. The trial Judge granted the State's motion to sentence Alston to an extended term as a persistent offender and imposed a sentence of life in prison with twenty-five years to be served without parole on Count Two and a concurrent five-year term in prison on Count Three. Count Four was merged into Count Two. The appropriate penalties and assessments were also imposed.

The trial Judge sentenced defendant Davis to thirty years in prison with fifteen years to be served without parole on Count Two and a concurrent five-year term in prison on Count Three. Again, Count Four was merged into Count Two. The appropriate monetary penalties and assessments were imposed. Although separate notices of appeal were filed and the cases were not consolidated, we now consolidate and dispose of these appeals in one opinion.

On January 6, 1995, between 11:00 and 12:00 p.m., Deborah Bennett was looking out a second-floor window of her home at 622 Sanford Avenue, Newark, New Jersey, when she observed a car stop at the traffic light at the intersection of Sanford Avenue and Eighteenth Street. The vehicle began to drift through the red light and onto the sidewalk past Ms. Bennett's house. It came to rest at a fence in front of 630 Sanford Avenue. Newark Police were dispatched to the scene. They found the driver's side window of the car shattered into the car's interior. There was blood and glass on the front seat and the floor of the car. The victim had been shot. He was transported to the hospital and pronounced dead of a gunshot wound to the chest and left arm.

Newark Police Detective Rashid Sabur was assigned as the lead investigator in the investigation. He was initially unsuccessful in locating any witnesses to the homicide.

On January 9, 1995, another homicide by gunfire occurred in the same vicinity. Detective Miguel Marquez of the Newark Police Department was the lead investigator in that case. During his investigation of that homicide, Detective Marquez was informed that the assailant was hiding inside 43 Silver Street, about four blocks away from that homicide. The officers approached the residence and observed an unidentified person toss five vials of cocaine out a bedroom window. They found fifteen-year old Malika Williams, Lamar Brown and two other persons in that bedroom as well as a plastic bag containing thirty vials of cocaine and $147. Malika and Lamar informed the police they were eyewitnesses to the January 9 homicide. Based upon his investigation, Detective Marquez gave Detective Sabur a list of potential witnesses to the homicide Sabur was investigating. Malika Williams and Lamar Brown were on the list.

On the evening of January 29, 1995, Detective Sabur saw defendant Reginald Davis (Davis) on the street with two other individuals in the area of the shooting. Sabur questioned them as potential witnesses. Davis told Detective Sabur that he lived at 48 Dover Street, Newark. Detective Sabur asked Davis why he was in the area and Davis responded that this was his first time in the area. Davis denied knowing anything about the homicide. Davis and the other two individuals were then transported to Detective Sabur's office for further interview. Detective Sabur obtained their names and addresses, dates of birth, and received their permission to take photographs of them. They were released that evening.

Shortly after Davis and the two other individuals were released, Detective Sabur received an anonymous telephone call. The caller identified "Ron" and "Big Reg" as suspects in the killing. The caller also stated that they lived on Dover Street, two blocks away from the homicide. As a result, Detective Sabur contacted Davis's mother who told him she knew someone named Ron who lived on Dover Street. Based upon that information, Detective Sabur obtained a photograph of Herron Alston (Alston) from the Essex County Prosecutor's Office.

On January 12, 1995, Detective Sabur contacted Malika Williams over the telephone. She did not go to police headquarters at that time. She asked Detective Sabur if her grandmother would find out that she was speaking to him. Because of that, Detective Sabur suspected she knew something about the homicide. Further attempts to canvas the area in an effort to locate potential witnesses were unsuccessful.

On February 9, 1995, Detective Sabur went to Malika Williams home in an effort to find her grandmother. He spoke with Malika's aunt who encouraged Malika to accompany Detective Sabur and Investigator Koonce to their office and speak to them about the investigation. Malika gave a statement in which she said that she was standing on the porch of 43 Silver Street with her boyfriend, Lamar Brown, when she saw Davis and Alston talking to a man in a car. She heard Alston say, "Ain't you the one who beat me in the summertime" and she then heard Davis tell Alston to shoot the man. She saw Alston reach into his coat, pull out a gun, and shoot the victim. Alston and Davis fled and Malika and Lamar went into the home.

On February 16, 1995, Detective Sabur went to Lamar Brown's place of employment and asked Brown to come to his office for questioning about the shooting. According to Sabur, Brown came voluntarily and gave a statement corroborating Williams' account. He also identified each defendant in separate photo arrays.

Prior to trial, Brown recanted his February 16 statement claiming that Sabur and another detective had elicited the statement by beating him. He also claimed they threatened to incarcerate him as a material witness if he did not speak with them. At trial he maintained that his statement to the police was false. However, his statement was admitted as substantive evidence. See N.J.R.E. 803(a)(1)(A).

In his opening statement to the jury, the trial prosecutor made reference to the anonymous caller's information and stated that the information led directly to defendants as suspects. He argued as follows:

The evidence will show you that the police received some information and from that information they were able to develop two suspects, I submit to you the two defendants are seated at counsel table.

At trial, Malika Williams was called as a State's witness. She testified that she saw Alston shoot the victim at the urging of Davis after Alston said to the victim "ain't you the one that beat me in the summertime?" However, she was confronted with a number of inconsistencies with her prior statement, and her testimony at the waiver hearing. For example, at trial she stated that she was sitting with Lamar Brown on the front steps of her porch when the incident occurred notwithstanding the fact that there was an icy rain storm at the time. She testified that if she had been standing in the middle of the porch as she initially stated, her view would have been blocked by a tree. Contrary to her earlier statement, she said that she never saw the handgun. Faced with this contradiction, she claimed, "I made a little correction, okay? I don't remember everything." She then stated that she could not remember if she saw a gun that evening.

She also testified that she accompanied Detective Sabur to the police department for questioning because he told her he would call the Division of Youth & Family Services and have her incarcerated. She further testified that she initially told Detective Sabur she knew nothing about the shooting. She claimed he threatened to place her on a polygraph and that she became frightened and gave a statement implicating defendants.

At trial, Detective Sabur was permitted to testify, over objection from Davis, that on January 12, 1995, she received a telephone call from an anonymous male caller who told them that "Ron" and "Big Reg" who both lived on Dover Street, in Newark, were suspects in the crime. The testimony concerning the content of the anonymous call was, as follows:

Q. Now, again, without telling us the specific information received, did you receive information concerning a suspect or suspects, actual potential suspects or suspects regarding your homicide.

MR. ALTWARG: [Attorney for co- defendant Davis] Object. Overruled. Just yes or no.

A. Yes.

Q. And did you receive names, a name or names?

A. I received a partial name.

Q. And how about an address of the individual?

A. I didn't receive an address, but I received the name of an individual, and the name of the street where the individual supposedly lived.

Q. Now, based on the information that you received, are you looking for males or females?

A. Two males.

Q. And based on the information you received, what is the -- strike that -- ...


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