On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 98-10-2525-I.
Before Judges Wefing, Lisa and Fuentes.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2002
Defendant, Jamal Muhammad, was convicted of third-degree unlawful possession of a hand gun, N.J.S.A. 2C:39-5b (count one), second-degree possession of a hand gun for an unlawful purpose, N.J.S.A. 2C:39-4a (count two), first-degree armed robbery, N.J.S.A. 2C:15-1 (count three), first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four), first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1),(2) (count five), and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1, N.J.S.A. 2C:5-2 (count six). The judge merged felony murder with murder, for which he imposed a sentence of life imprisonment with a thirty-year parole disqualifier. The judge merged count two with counts three and six. He imposed the following sentences, all concurrent to the murder sentence: count one, five years; count three, twenty years with a ten-year Graves Act parole disqualifier, N.J.S.A. 2C:43-6c; and count six, ten years. Appropriate mandatory monetary sanctions were imposed.
On appeal, defendant makes the following arguments through counsel:
POINT I BY ALLOWING THE PROSECUTOR TO PLAY PORTIONS OF THE VIDEOTAPED TRIAL DURING SUMMATION, THE COURT PERMITTED THE STATE'S WITNESSES TO TESTIFY TWICE AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
POINT II THE TRIAL COURT ERRED IN ADMITTING THE TAPE OF STEPHON DUGGAN'S PRIOR CONSISTENT STATEMENT BECAUSE THE TEMPORAL-PROXIMITY REQUIREMENT OF N.J.R.E. 803a(2) WAS NOT MET. POINT III THE TRIAL COURT'S FAILURE TO CHARGE "MERE PRESENCE" DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below).
POINT IV BECAUSE EVIDENCE OF THE KENNETH HOWARD ROBBERY WAS INFLAMMATORY AND UNNECESSARY TO THE STATE'S CASE, ITS ADMISSION VIOLATED 2 N.J.R.E. 404(b) AND 403 AND, ALONG WITH THE COURT'S ERRONEOUS AND INADEQUATE LIMITING INSTRUCTION, DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Partially Raised below).
POINT V THE TRIAL COURT'S FAILURE TO EXCUSE JUROR NO. 8 AND TO VOIR DIRE THE REMAINING JURORS AFTER JUROR NO. 8 INDICATED THAT HE HAD DISCUSSED WITH THEM HIS FEARS ABOUT BEING A DELIBERATING JUROR RESULTED IN JURY TAINT WHICH DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT VI THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1 AND 10.
In a supplemental pro se brief, defendant makes the following additional arguments:
POINT I THE LACK OF A PROPER IDENTIFICATION CHARGE IN THIS CASE AMOUNTED TO A FUNDAMENTAL DENIAL OF JUSTICE WHICH REQUIRES A REVERSAL AND A NEW TRIAL GRANTED.
POINT II THE LACK OF EVIDENCE PRODUCED BY THE STATE CONNECTING DEFENDANT TO THE KILLING OF VAUGHN ROLLINS SHOULD HAVE RESULTED IN A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
POINT III THE JOINT TRIAL OF CO-DEFENDANT WHOSE DEFENSES WERE INCONSISTENT SO PREJUDICED THE DEFENDANT AS TO DENY HIM HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
POINT IV THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERROR VIOLATED THE COMMON LAW OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION. (Not Raised Below)
We reject these arguments and affirm. Points III, V and VI of counsel's brief, and all of the points in defendant's pro se brief, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We will discuss the remaining points.
On October 22, 1996, Vaughn Rollins was shot and killed. For several weeks before that, defendant and his co-defendant, Na'eem Santiago, were attempting to obtain a gun. They approached Stephon Duggan, an individual known to defendant, for this purpose. Defendant told Duggan he needed a gun because "he was having problems." This apparently referred to money problems, and defendant and Santiago told Duggan they intended to use the gun to rob people. Duggan asked several people about Santiago and on October 20, 1996, met with defendant and Santiago again and agreed to give them a gun. He handed a loaded nickel-plated .38 caliber semi-automatic handgun to defendant, who then turned it over to Santiago, who placed it in his waistband. Defendant and Santiago discussed potential robbery victims. Included among them was Vaughn Rollins, but Duggan told them not to rob him because he was his cousin.
This meeting took place on the street in Atlantic City. While the three men were still together, a young man, Kenneth Howard, rode past on a bicycle. Defendant and Santiago proceeded to rob him. They wore ski masks. Santiago pressed the gun to Howard's ribs and cut him in the neck and leg with a butcher knife. They ordered Howard to remove his clothing (except his underwear, socks and shirt) and crawl under a parked truck. The two then rode off, one peddling, the other on the handlebars, on Howard's bicycle with Howard's clothes. Having witnessed this event, Duggan claims he had second thoughts about giving the gun to defendant and Santiago and claims he made several requests that it be returned.
On October 22, 1996, defendant and Santiago spent much of the day in the Venice Park section of Atlantic City. Between 7:00 and 8:00 p.m., Rollins drove up, accompanied by Anthony Jones. Defendant and Santiago were sitting together on a porch. There were between fifteen and thirty young people congregating on porches and in the street in that immediate vicinity. Jones got out of the car and went into an apartment building to visit his girlfriend. He told Rollins he would be out in ten to fifteen minutes. Rollins sat in the car and was counting money.
A man later identified as Santiago approached Rollins as he sat in the car. Santiago pulled on a ski mask, brandished a handgun, and demanded Rollins give him the money. Rollins did not comply. Santiago fired one shot, which struck and killed Rollins. Immediately after the shot rang out, Santiago left the scene, leaving the view of witnesses on the street by going around the corner. Defendant proceeded around the same corner, then returned to the porch and retrieved his jacket, after which he left the area, going around that same corner in the same direction as Santiago.
Informed of the shooting, Duggan went to the hospital where Rollins lay dying. He informed Rollins' father that night that he had supplied the gun to defendant and Santiago that killed his son. Duggan contacted Santiago, who acknowledged killing Rollins, but claimed it was an accident. Later that night, Santiago went to Aaron McCoy's apartment seeking advice. He told McCoy he had killed Rollins. McCoy called a cab for Santiago, and "told him to go over the bridge, throw the gun in the water and just get lost."
Three days later, after attending Rollins' funeral, Shanita Alvarez and Sequoya Walker went to Philadelphia, where they happened to encounter Santiago at the bus station. Santiago asked them not to tell anyone they saw him and that he was leaving for "like Arizona somewhere" because the police "were trying to put a body on him," referring to Rollins. Santiago remained a fugitive until he was arrested for the murder of Rollins in Jacksonville, Florida on May 1, 1998. Several days later, defendant turned himself in to the New Jersey authorities.
Defendant and Santiago were indicted and tried together. Santiago was convicted of the same counts as defendant. Santiago has been sentenced and has appealed. His appeal proceeded separately, and in an unpublished opinion, we affirmed his conviction (A-4881-99T5). The Supreme Court denied his petition for certification. State v. Santiago, 170 N.J. 210 (2001). Neither defendant testified at trial. It is clear from the proofs that Santiago was the shooter.
The trial was conducted in a courtroom equipped with videotape as the means of officially recording the proceedings. See Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 533 (Law Div. 1996), for a description of this equipment. During summation, the prosecutor was permitted, over defense objection, to play portions of the trial testimony of five State witnesses. The objection interposed at trial was that this technique might place undue emphasis on the portions played and might interfere with the ability of the jurors to rely on their own recollection of the witnesses' entire testimony. Defendant claims it was error to allow the video playbacks at all. Defendant further argues, for the first time on appeal, that it was error not to have conducted a N.J.R.E. 104(a) type hearing before allowing the playbacks and not to have given a cautionary instruction.
On the latter points, because no objection was made at trial, we are guided by the plain error standard, and we will disregard the alleged error unless it is "clearly capable of producing an unjust result." R. 2:10-2. "Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The error claimed must be so egregious that it "raise[s] a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
We hold it was not error to allow the playbacks, and, in the context of this case, failure to first conduct a hearing and to later give a cautionary instruction do not constitute plain error.
Jury selection and motions occurred on February 14, 2000. The trial was conducted before the jury on February 15, 16, 17, 22, 23 and 24, when deliberations began. On February 25 the jury reached its verdict. The State called twenty-three witnesses; defendant called three and Santiago called one. Immediately prior to her summation, the prosecutor announced that she intended to play excerpts of the testimony of some witnesses during her summation. Defense counsel objected, but did not request a hearing to permit them and the court to view the selected portions. The judge rejected the defense argument that the technique might improperly overemphasize the selected portions of the witnesses' testimony or interfere with the jurors' ability to recall and rely on the witnesses' entire testimony. The judge reasoned that just as counsel would be permitted to read portions of testimony from a trial transcript, so too could they use the court-supplied video, which officially records the proceedings and accurately captures the testimony, for the same purpose.
In the course of her summation, the prosecutor played portions of the testimony of five witnesses. A total of nine segments were played. Most of them ran for about two to three minutes. Their combined time was about twenty-five minutes. The prosecutor occasionally interrupted her remarks to the jury by playing these segments. Three segments of Duggan's testimony were played. Duggan was a key witness with respect to defendant. Santiago's role as the shooter was supported by substantial evidence, including eyewitness testimony identifying him as the shooter, his admission to McCoy and Duggan that he killed Rollins, and his flight to avoid prosecution. Defendant's role in the killing was more attenuated. At the time of the shooting, defendant was sitting on the porch of a nearby apartment building, along with many other people who were out in the neighborhood that evening. He had been with Santiago in the neighborhood throughout the day and left the scene after the shooting with Santiago. These circumstances alone surely would not support a conviction for Santiago's conduct.
The evidence linking defendant to the crime is derived substantially from Duggan's account of his conversations with and observations of defendant and Santiago on and before October 20, 1996, in furnishing them with a gun which they said they would use to rob people, including Rollins as a prospective target, and watching them actually use the gun to rob Howard. Howard identified Santiago, but could not identify the other masked perpetrator who robbed him. Duggan's testimony, therefore, was crucial in implicating defendant.
The prosecution acknowledged the indispensability of Duggan's account of furnishing the gun and observing the Howard robbery in its case against defendant. The judge conducted a N.J.R.E. 104(a) hearing to consider the State's proffer of the Howard robbery as "other crimes" evidence, N.J.R.E. 404(b), or, alternatively, as direct evidence of the conspiracy to commit robbery charge. With respect to defendant, the prosecutor argued: "We place him on the scene, but we do not have him moving from his spot on the porch to participate directly in the robbery that occurred." She contended the probative value of this evidence "is enhanced by the absence of any other evidence that the State can offer" to demonstrate that defendant had the motive or intent to participate with Santiago in committing an armed robbery. She concluded the high probative value thus outweighed any prejudicial effect because "it is the only evidence we have, particularly against one of the two defendants."
We illustrate the prosecutor's technique by recounting, in its entirety, the video playbacks of portions of Duggan's testimony. *fn1 The prosecutor discussed that Duggan's credibility was subject to question because of his prior criminal record, but that his testimony should be believed because it was supported by other evidence. Such other evidence included Duggan's version of the Howard robbery, which was consistent with that given by Howard. The prosecutor said "Let's listen to what [Duggan] said about the robbery of Kenneth Howard." She then played this video excerpt of Duggan's testimony:
Q: Okay. After Jamal got the gun, gave it to Na'eem, Na'eem put it in his waistband, what did -- what did you do?
A: I walked them outside.
Q: What happened when you walked them outside?
A: We walked and talked. Came to the street and a guy rode up on a bike and said that was his friend.
Q: Who said that was his friend?
A: I'm not sure who said it.
Q: Was it either Jamal or Na'eem?
A: Na'eem walked over to him and I seen a butcher knife. They walked around the corner.