On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 00-05-1100-I.
Before Judges Wallace, Jr., Ciancia, and Axelrad.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 16, 2002
Tried by a jury, defendant was found guilty of first degree murder, N.J.S.A. 2C:11-3a(1) and (2); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and fourth degree witness retaliation, N.J.S.A. 2C:28-5(b). The trial court merged the weapons offenses into the murder conviction and sentenced defendant to a life term with a thirty- year period of parole ineligibility for murder and imposed a concurrent eighteen-month term for witness retaliation. The court also imposed appropriate fines and penalties.
On appeal, defendant makes the following arguments in his brief.
POINT I: THE ADMISSION OF HIGHLY PREJUDICIAL AND IRRELEVANT EVIDENCE OF OTHER BAD ACTS, ALLEGEDLY COMMITTED BY THE DEFENDANT, WITHOUT ANY SANITIZATION OR ANY MEANINGFUL LIMITING INSTRUCTION FROM THE COURT, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST., ART. I, PARS. 1, 9 AND 10) (NOT RAISED BELOW). A. The Other Bad-Acts Evidence B. The Court's Limiting Instruction POINT II: THE TESTIMONY OF JANE DUNBAR THAT SHE HAD ORDERED THE DEFENDANT TO LEAVE HER HOME BASED ON CONVERSATIONS THAT SHE HAD WITH PEOPLE IN THE COURTYARD, WHERE THE DECEDENT HAD BEEN MURDERED, THE TESTIMONY OF OFFICER CHARLES MILLER THAT HE HEARD A WOMAN IN JANE DUNBAR'S APARTMENT BUILDING YELLING AT THE DEFENDANT STATING "THEY SAID YOU KILLED THAT MAN," AND THE TESTIMONY OF TERRY MCCLAIN THAT ADRIAN BOULDIN HAD TOLD HER THAT THE DEFENDANT HAD "ALREADY KILLED" IN REFERENCE TO MARK COTTON VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL; THIS ERROR WAS COMPOUNDED BY THE MISCONDUCT OF THE PROSECUTOR IN SUMMATION IN COMMENTING ON THIS INADMISSIBLE HEARSAY TESTIMONY (NOT RAISED BELOW).
POINT III: THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER, CONSTITUTED A VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. ART. I, PARS. 1, 9 AND 10 (NOT RAISED BELOW).
POINT IV: THE REFUSAL OF THE TRIAL COURT TO INSTRUCT THE JURY IN ACCORDANCE WITH THE MODEL JURY CHARGE ON IDENTIFICATION, DENIED THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. ART, I, PARS. 1, 9 AND 10 (PARTIALLY RAISED BELOW).
POINT V: THE DEFENDANT'S SENTENCE OF LIFE IMPRISONMENT WITH 30 YEARS TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
We are constrained to reverse and remand for a new trial.
On the morning of May 8, 2000, defendant and some friends were on the porch of Angie Sanford's apartment in the Lexington Courts housing complex in Atlantic City, New Jersey, when Arthur Thomas approached the porch to buy drugs. As Thomas walked away, defendant stated that Thomas had "snitched on him." Defendant was referring to the fact that a year earlier, Thomas had testified against defendant in a murder trial where defendant was acquitted. Thomas had recently been released from a drug program before his encounter with defendant.
Defendant grabbed a gray brick, took several steps forward and struck Thomas very hard in the head with the brick. Thomas fell forward, head first, down a flight of stairs and hit his head on a concrete sidewalk below. He subsequently died.
At the time of the incident, LeVerne Garland was in a nearby apartment with her niece, Adrian Bouldin, when she heard Bouldin yell for help. Garland entered the balcony in time to see Thomas fall down the steps and defendant run away. Bouldin told Garland what happened, and Garland immediately went to a pay phone to call the police. She reported the incident and hung up. She called a second time. This time she named defendant as the assailant and indicated he was still in the area. Garland later gave a taped recorded statement to the police on May 10, 2000.
While en route to the scene, police officers Mary McMenamin and Charles Miller, of the Atlantic City Police Department, were flagged down by Chevon Faulkner. Faulkner told the officers that "a man was down" and that he had been hit in the head with a brick.
The officers found Thomas lying face down on a concrete surface at the bottom of a concrete stairway. There was a large amount of blood coming from Thomas's head, and a gray brick lay next to him. Officer Miller concluded that Thomas was dead.
Thereafter, McMenamin and police officer Autumn Mason sought to speak with Faulkner, but she was reluctant to answer any questions. Faulkner's mother invited the officers inside her apartment to speak with her daughter. The officers agreed, but Faulkner still did not want to talk with them. Ultimately, they agreed that Faulkner would go to the police station to discuss what she saw.
Meanwhile, defendant went to Jane Dunbar's apartment. Dunbar was the mother of one of defendant's friends. Defendant entered the bedroom of Dunbar's eleven-year-old son and began playing video games with him. Shortly thereafter, police arrived in the courtyard. While in the apartment, defendant asked the boy twice to look out the window and check if the police were still there. The boy subsequently alerted his mother to the police activity, and she ascertained from one of the officers that someone had been killed. Dunbar noticed defendant was in her son's bedroom. She went outside and spoke to a group of neighbors to find out what happened. Based on information she learned during that conversation, Dunbar returned to her apartment and ordered defendant to leave. By this time, defendant had changed his clothes and placed his pants in the hamper. He left the apartment.
Around the same time, Officer Miller heard a female voice coming from the vicinity of Dunbar's apartment yelling, "They said you killed that man, I want you out of my house now." Miller and other officers went to investigate. A search of Dunbar's apartment revealed a pair of tan camouflage pants in the laundry area, which matched the description of what the assailant was wearing at the time of the incident.
Defendant next entered Rasheena Besmoore's apartment. Besmoore left and approached Officer Mason, whom she knew from high school. Besmoore told Mason that defendant was in her apartment. The police went to Besmoore's ...