On appeal from the Superior Court of New Jersey, Law Division, Union County, 00-06-0584.
Before Judges King, Lintner and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In his opening statement in this murder trial, the prosecutor informed the jury that a non-testifying co-defendant, who had pled guilty and accepted his responsibility for the crime, told the police that the defendant on trial was a co- perpetrator, and indeed the shooter. The prosecutor stated the co-defendant would testify accordingly. As part of his plea agreement, the co-defendant had agreed to testify. But when called as a witness, he refused. In his summation, the prosecutor vouched for the credibility of a witness who testified that defendant told him he participated in the crime. We hold that, although the prosecutor's comments in his opening statement may have been made in good faith and did not constitute"evidence," the prejudicial effect on defendant was devastating, and, coupled with the prosecutor's vouching for the State's key witness who did testify, deprived the defendant of a fair trial.
Defendant, Ashakoor Walden, and his co-defendant, Duquan McElveen, were charged jointly in a twelve count indictment as follows: (1) first-degree murder of John Welsh, N.J.S.A. 2C:11- 3a(1) or (2); (2) first-degree robbery of John Welsh, N.J.S.A. 2C:15-1; (3) first-degree felony murder of John Welsh, N.J.S.A. 2C:11-3a(3); (4) second-degree possession of a.32 caliber handgun with a purpose to use it unlawfully against John Welsh, N.J.S.A. 2C:39-4a; (5) second-degree unlawful possession of a.22 caliber handgun with a purpose to use it unlawfully against John Welsh, N.J.S.A. 2C:39-4a; (6) third-degree unlawful possession of a.32 caliber handgun without a permit, N.J.S.A. 2C:39-5b; (7) third-degree unlawful possession of.22 caliber handgun without a permit, N.J.S.A. 2C:39-5b; (8) first-degree robbery of Dion Johnson, N.J.S.A. 2C:15-1; (9) second-degree possession of a.32 caliber handgun with a purpose to use it unlawfully against Dion Johnson, N.J.S.A. 2C:39-4a; (10) second degree possession of a.22 caliber handgun with a purpose to use it unlawfully against the person of Dion Johnson, N.J.S.A. 2C:39-4a; (11) third-degree unlawful possession of a.32 caliber handgun without a permit, N.J.S.A. 2C:39-5b; and (12) third degree unlawful possession of a.22 caliber handgun without a permit, N.J.S.A. 2C:39-5b.
McElveen pled guilty to various charges in return for a recommended sentence of twenty years imprisonment. As part of his plea agreement with the prosecutor, McElveen agreed to testify truthfully against defendant. Defendant went to trial, and was convicted of counts one, two, three, four and six, namely the robbery, murder and felony murder of Welsh and possession of the.32 caliber handgun for an unlawful purpose against Welsh and unlawful possession of the.32 caliber handgun without a permit in connection with the murder of Welsh. After merging count three with count one, and count four with counts one and two, the judge imposed a sentence of life imprisonment with a thirty-year parole disqualifier for murder and imposed concurrent sentences on counts two (robbery) and six (unlawful possession of a weapon). Appropriate mandatory monetary assessments were imposed.
On appeal, defendant argues:
POINT I DEFENDANT'S CONVICTIONS MUST BE VACATED BECAUSE THE STATE PROMISED IN OPENING ARGUMENT THAT THE CO-DEFENDANT WOULD TESTIFY AND IMPLICATE DEFENDANT IN THE SHOOTING, BUT THE CO-DEFENDANT NEVER ACTUALLY TESTIFIED. (Not Raised Below).
POINT II PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (Not Raised Below).
POINT III THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A LIFE TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
We agree with Points I and II and reverse and remand for a new trial. Because of this disposition, we do not reach Point III.
On the night of October 25, 1999, Welsh was walking in the company of two girls in Roselle. Two men wearing bandanas over their faces approached them, and ordered Welsh to come with them. The two girls ran. They heard gun shots. A woman in the neighborhood taking out her garbage witnessed the shooting.
According to her, one of the perpetrators fired a single shot at Welsh, who was walking slightly ahead of him. Welsh fell to the ground. The other perpetrator then stood over Welsh and fired two shots at him. Neither of ...